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Student Identifiers Bill 2013

Introduced into the House of Representatives on 20 March 2013

Portfolio: Tertiary Education, Skills, Science and Research

Summary of committee view

1.241         The committee considers that the bill promotes the rights to education and to work and any limitations on those rights are reasonable.

1.242         The committee seeks clarification of the circumstances under which exemptions to the requirement to have a student identified number in order to obtain a VET qualification or VET appointment may be granted.

1.243         The committee seeks clarification as to how the open-ended nature of a number of provisions relating to the purposes for which student identifiers may be collected, used or disclosed is consistent with the right to privacy.

Overview

1.244         The bill establishes a scheme under which a unique student identifier will be provided to individuals undertaking nationally recognised vocational education and training (VET) as of 1 January 2014. The student identifier will be linked to records of nationally recognised training undertaken and the resulting qualifications achieved by learners over their lifetime. The student identifier will also help generate more accurate information on what nationally recognised education and training is being undertaken and what qualifications are achieved.

1.245         The regulation impact statement (RIS) in the explanatory memorandum to the bill provides a clear statement of the current practical difficulties that the bill proposes to address. It notes that some 30 per cent of the approximately 2.3 million enrolments in the VET system each year use multiple providers. Students ‘have little or no control over their VET activity data and cannot easily find, collate and authenticate all of their educational attainments in a single portable record.’[1] The RIS also sets out in some detail the costs and benefits of the various options (including those relevant to human rights) that were considered before the scheme proposed by the bill was settled on.

Compatibility with human rights

1.246         The bill is accompanied by a self-contained statement of compatibility which provides a detailed and helpful analysis of the potential impact of the bill on the rights to education, work and privacy. It concludes that the bill will promote enjoyment of the rights to education and work, and that to the extent that it limits these rights, they are permissible limitations on the enjoyment of those rights.

Right to education

1.247         The statement of compatibility notes that the bill promotes the right to education, in particular the right in article 13(2)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)  which states that ‘secondary education, in all its different forms, including technical and vocational secondary education shall be made generally available and accessible to all by every appropriate means and in particular by the progressive introduction of free education.’ The statement also states that the bill promotes the right to education by improving the accessibility of technical and vocational education and ensuring that eligibility for subsidised training can be determined with a higher degree of confidence than currently possible.[2]

1.248         The statement of compatibility also notes that the bill may limit the right to education by prohibiting a registered training organisation (RTO) from issuing a VET qualification or a VET attainment statement to an individual who has not been assigned an identifier.[3] This prohibition will not apply in relation to certain RTOs, qualifications and individuals as specified by the Commonwealth Minister by legislative instrument.[4] Clause 53(3) of the bill provides no indication of the criteria on the basis of which the Minister may grant such an exemption from the prohibition in clause 53(1).

1.249         The statement of compatibility notes that the right to education will not initially be limited, but that:

for those students who do not obtain a student identifier (which is expected to be very few) and are not covered by an exemption, access to education may be limited if their ability to undertake further training is dependent on the student providing a VET qualification or a VET statement of attainment for a prerequisite course.[5]

1.250         The statement of compatibility notes:

The purpose of the prohibition is to ensure that there is maximum participation of students in the student identifier scheme and the exemptions to the prohibition will be necessarily limited to maintain the integrity of the scheme. This will ensure that the above mentioned benefits will more likely flow to the majority of the students in the VET system. 

As there is no fee attached to applying for a student identifier, the application process is designed for maximum ease and flexibility and there is no detrimental effect on a student’s study resulting from obtaining a student identifier, this limitation on the right to education is necessary, reasonable and proportionate to ensure that the above mentioned benefits will flow to students and is for the purpose of promoting the general welfare of students. This is therefore consistent with the right to education under Article 13 of the ICESCR.[6]

1.251         Article 4 of the ICESCR provides:

States Parties may subject rights under that Covenant only to such limitations as are determined by law and only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Right to work

1.252         The statement of compatibility states that the bill will also promote the rights to work as guaranteed in article 6 of the ICESCR ‘by improving the accessibility of technical and vocational education and progressively realising the right to secondary education being general [sic] available and accessible’ and that ‘this will ensure that students will have greater opportunities to work in areas that they choose and will therefore also promote the right to work.’[7]

1.253         The statement further notes that the bill may also limit that right:

Where formal recognition of a qualification is a prerequisite to work, the prohibition on RTOs from issuing a VET qualification or a VET statement of attainment to an individual who has not been assigned an identifier may limit the right to work. [8]

1.254         The justification offered for this limitation on the enjoyment of the right is that:

the prohibition on issuing a qualification is to ensure that there is maximum participation of students in the student identifier scheme and the exemptions to the prohibition will be necessarily limited to maintain the integrity of the scheme. As this legitimate policy aim is achieved in a way that is reasonable, necessary and proportionate... the Bill will be consistent with the right to work under article 6 of the ICESCR.[9]

1.255        The committee considers that the bill generally promotes the right to education and the right to work. To the extent that the bill may limit the enjoyment of those rights, it pursues a legitimate objective.  However, the bill does not provide details of the circumstances in which an exemption from the prohibition on issuing a VET qualification or a VET statement of attainment may be granted, as these are to be provided for by legislative instrument.

1.256        While the bill is likely to be considered a reasonable and proportionate measure adopted in the pursuit of a legitimate objective, the committee is not able to make a final assessment of compatibility until these details are provided by the relevant legislative instrument or until the criteria for the making of such legislative instruments are set out either in the bill or regulations. Similarly, until those details are provided there is some doubt as to whether it can be said that the limitation is provided by ‘law’ in the sense that this requires that the precise circumstances under which a right will be limited must be specified by law.

Right to privacy

1.257         The statement of compatibility notes that the collection of personal information for the purposes of the scheme and the possibility of linking various data relating to individual students engages the right to privacy as provided for in article 17 of the International Covenant on Civil and Political Rights (ICCPR). Accordingly, as the statement of compatibility notes, any limitations must be demonstrated to be in pursuit of a legitimate objective, be a rational and reasonable way of pursuing that objective and be proportionate. As part of that assessment, consideration of whether alternative means were available and the provision of safeguards, will be relevant.

1.258         The statement of compatibility notes that the disclosure of identifiable personal information will be permitted for a number of purposes specified in the bill.  The statement of compatibility notes that the provisions of the Privacy Act 1988 will apply to the possession and use of personal information by those who are permitted to collect, use, or disclose personal information under the bill. The explanatory memorandum (including the RIS) and the statement of compatibility provide a detailed account both of the uses for which information may be collected and used, and the consideration given to measures to ensure protection against the misuse of personal information, and specific safeguards that apply.[10]

1.259         Nonetheless, the purposes for which personal information (in the form of the student identifier) may be used are extensive.[11] While many of these purposes are directly related to VET educational and administrative activities, others go beyond this. For example, clause 20 provides:

An entity is authorised to collect, use or disclose a student identifier of an individual if the entity reasonably believes that the collection, use or disclosure is reasonably necessary for one or more of following things done by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988):

(a) the prevention, detection, investigation, prosecution or punishment of: 

(i) criminal offences; or 

(ii) breaches of a law imposing a penalty or sanction;

(b) the conduct of surveillance activities, intelligence gathering activities or monitoring activities;

(c) the conduct of protective or custodial activities;

(d) the enforcement of laws relating to the confiscation of the proceeds of crime; 

(e) the protection of the public revenue;

(f) the prevention, detection, investigation or remedying of  misconduct of a serious nature, or other conduct prescribed  by the regulations;

(g) the preparation for, or conduct of, proceedings before any court or tribunal, or the implementation of the orders of a court or tribunal.

1.260         Clause 21 also provides that:

An entity is authorised to collect, use or disclose a student identifier of an individual if the collection, use or disclosure is authorised by the regulations.

1.261         The committee is concerned at the wide range of purposes for which a student identifier may be collected, used or disclosed and that it only has to be shown that the relevant entity ‘reasonably believes’ that it is ‘reasonably necessary’, a standard which appears less demanding than the usual international human rights law requirement of demonstrating that a limitation on a right is ‘necessary’.

1.262         The committee also expresses its concern at the vague nature of some of the permitted purposes, in particular the provision contained in paragraph 20(f) (‘the prevention, detection, investigation or remedying of misconduct of a serious nature’), and does not consider that the permissibility of such a use has, without further information, been established. The provision that this category may also extend to ‘conduct prescribed by the regulations’, with no specification of any relevant criteria, makes the provision even more problematic in terms of human rights compatibility, which can only be finally assessed once specific regulations are adopted.

1.263         The committee further notes that the open-ended provision in clause 21 that further permitted purposes for the collection, use or disclosure of the student identifier may be authorised by the regulations is in contrast with the argument in the statement of compatibility and explanatory statement that there are tight controls on the use of student identifiers. In human rights terms the provision does not satisfy the ‘quality of law’ test, as it is not formulated with specific precision to enable a person to know when their privacy may be limited. While the committee accepts that this may be remedied by the promulgation of regulations setting out purposes consistent with the right to privacy, it considers that it is highly desirable that the relevant purposes and criteria be included in primary legislation. 

1.264         The committee intends to write to the Minister for Tertiary Education, Skills, Science and Research to seek clarification as to how the open-ended nature of a number of provisions relating to the purposes for which student identifiers may be collected, used or disclosed is consistent with the right to privacy.

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