CHAPTER 2

Issues and Recommendations

2.1       Submissions received generally supported the introduction of a unique student identifier scheme. For example, Service Skills Australia noted that better record-keeping across jurisdictions, shortening of recruitment processes and facilitation of workforce planning would all be positive measures resulting from the legislation.[1] The Shop, Distributive and Allied Employees' Association (SDA), Australia's largest single trade union, supported the bill noting that some of their previously-expressed concerns would be addressed were the bill to be passed.[2]

2.2       While still offering in-principle support for the bill, a number of organisations qualified their support, raising concerns with some measures in the bill as it currently stands. This chapter will examine the suggestions that have been made before concluding with the committee view and recommendations.

Mandatory requirement for a Unique Student Identifier

2.1         While recognising that mandatory participation in the scheme was necessary, Bluedog Training suggested that for certain students there are real concerns with the bill. They noted that a significant number of students undertaking short accredited courses would be disadvantaged.[3] In many instances people need to take courses as short as half a day to obtain qualifications for an available position. Applying for a USI online or authorising the RTO to apply for a USI on behalf of a client; obtaining copies of all relevant documentation; and the lack of obvious benefit to clients all presented a significant investment of time for clients who could not afford it and would be frustrated by it.[4]

2.2        Bluedog argued that the added requirement to obtain a USI would be enough to cause some clients to forego training altogether. They recommended that, if the USI scheme were to go ahead, a 24 hour phone service should be available to assist students with their applications. They also recommended that short courses that were otherwise unattached to qualifications or certificates should be exempted under the bill. In addition, Bluedog noted that the likely employment of six more staff to facilitate the measures introduced by the bill would force Bluedog (and presumably other RTOs in a similar position) to increase enrolment fees.[5]

2.3         The Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education and Tertiary Education (DIICCSRTE) notes in its submission that the rationale of the scheme is to allow students to find, collate and authenticate transcripts of results where it may otherwise be very difficult.[6] Students in situations such as those identified by Bluedog will still benefit from a USI should they undertake further training at a later date, or should they need to locate past results. In addition, these students will only need to apply for a USI once, potentially lessening the frustration that they may experience. On balance, the overall benefits of a USI scheme outweigh these concerns.

2.4        The Australian Council of Trade Unions (ACTU) questioned the practicability of clause 53 of the bill, stating that it 'appears to impose a requirement upon an individual to obtain a USI even if they only wish to obtain a copy of a qualification or statement of attainment from an RTO relating to training they completed decades ago.'[7] The ACTU noted that the apparent requirement for past students to acquire a USI to obtain previous transcripts runs contrary to the implied intent of the then Parliamentary Secretary for Higher Education and Skills statement 'student identifiers will be mandatory for students undertaking VET courses once the scheme commences.'[8] The Australian Education Union (AEU) voiced similar concerns in their submission.[9]

2.5        However, DIICCSRTE stated categorically in its submission that the 'scheme is not retrospective' and that the measures would apply to 'all learners undertaking nationally recognised training as of 1 January 2014.'[10]

Protection of private information

2.6        The bill's implications for the protection of privacy were the primary concerns raised by submitters throughout the course of the inquiry. The National Tertiary Education Union raised a number of questions including:

...what processes will be in place to ensure confidentiality of...information, and how students will be informed of their rights regarding the collection and storage of their personal information, as well as how to access any appeal mechanisms should they believe a breach of their rights has occurred.[11]

2.7        DIICCSRTE noted that individuals would be informed on how, and to whom, a USI may be disclosed at the point they apply for it.[12]

2.8        A key principle underlying the bill is that individuals should have control over their student identifier.[13] The ACTU expressed concern that this principle may be compromised by several clauses in the bill:

• Clause 13, providing that a registered training organisation or VET related body could potentially be given a student identifier without the individual's consent;
• Clause 18, which states that a student may 'impliedly' consent to the collection, use or disclosure of his or her student identifier; and
• Clause 21 which provides for disclosure of a student identifier if authorised by the regulation, but clear guidance is unclear as to the appropriate parameters of this measure.[14]

2.9        The ACTU argued that these clauses should be carefully reviewed to ensure that individuals are able to maintain control over their student identifier. In the case of clause 18, the ACTU argued that the term 'impliedly' should be removed altogether, and in the case of clause 21 proper guidance or parameters defining 'the regulations' is required.

2.10      The AEU also called for the term 'impliedly' to be removed, and that the clause be amended to require consent to be both express and informed.[15] The AEU raised other privacy concerns about the destruction of personal information under clause 10 as well as the need for defining misuse and proper use of a student identifier in clause 15.[16]

2.11      The Australian Manufacturing Workers' Union (AMWU) supported the ACTU's submission and also submitted that the privacy and confidentiality provisions would be 'central to the success of the scheme.'[17]

2.12      Although a number of privacy concerns were raised by submitters, the Australian Privacy Commissioner noted that the bill reflects the principles contained in the Privacy Act 1988 and as such is consistent with community values and expectations:

[The Privacy Commissioner] welcomes the approach taken in the Student Identifiers Bill 2013 to reflect the principles in the Privacy Act by outlining specific circumstances in which particular entities may collect, use or disclose an individual's student identifier. The [Office of the Australian Information Commissioner] also notes that the protection of records, destruction requirements and authenticated vocational education and training (VET) transcript provisions broadly reflect the security and access principles in the Privacy Act.[18]

2.13      The Office of the Australian Information Commissioner (OAIC) did however recommend that entities identified in the bill should be required to provide a privacy notice to a student if and when that entity applies for a USI on the student's behalf.[19] Although the OAIC recommended that this provision should be included in the bill, they also noted that DIICCSRTE had gone to some lengths to address these issues.

2.14      DICCSRTE addressed this concern in their submission saying that individuals would be informed through a privacy notice as to how, to whom and for what purpose their USI may be disclosed. In addition, a privacy notice template would be provided to all RTOs and VET admissions bodies for use on enrolment forms.[20] DIICCSRTE also noted that, in relation to the call for express consent to be required in the bill:

The reference to implied consent in clause 18 acknowledges the fact that it is not practical or possible to obtain the express consent of the individual every time the USI is collected, used or disclosed.[21]

Other issues

Inclusion of a purpose clause

2.15      A number of submissions identified the absence in the bill of a purpose clause. The ACTU noted that the inclusion of a purpose or objects clause was particularly important in light of the powers granted to the CEO of the Student Identifiers Agency. The ACTU considered that such a clause would be a safeguard, by guiding the CEO on what constituted misuse of a student identifier (see clause 15 of the bill).[22] Likewise, the AEU noted that this absence could lead to confusion over the proper purpose or use of a student identifier:

Absent an Objects or Purpose Clause, the Act simply places no further legislative restraints upon the 'use' or 'purposes' for which a student identifier can be put. It therefore obvious that individuals are not in control of their student identifiers and their records will be readily available to a very wide range of entities.[23]

2.16      DIICCSRTE recognised that the bill does not include an object or purpose clause, but stated that the outline to the Explanatory Memorandum sufficiently 'sets out the issues that the USI scheme is designed to address and provides clarity around the purposes of the Bill.'[24]

Civil penalties for the misuse of student identifiers

2.17      The ACTU recommended the addition of an explicit clause outlining civil penalties to encourage the protection of privacy, noting that such provisions exist in equivalent schemes on the state level.[25] The AEU also raised this concern, and while recognising that the bill enforces privacy protection through the provisions of the Privacy Act 1988, still submitted that the bill 'provides no adequate sanction for the misuses of Student Identifiers.'[26]

2.18      DICCSRTE addressed the question of civil penalties under the bill stating that:

The SI Bill contains no sanctions or penalties, because contraventions of the Bill's provisions safeguarding the USI are a breach of the Privacy Act 1988. Under reforms to that Act due to commence on 12 March 2014, the maximum penalty amount for a serious or repeated interference with the privacy of an individual will be $340,000 for individuals and $1.7 million for entities.[27]

Interaction between the bill and the Privacy Act

2.19      Although the Privacy Commissioner noted that the bill's alignment with the Privacy Act 1988 provided adequately for the protection of privacy, the Commissioner submitted that the current drafting of subclause 22(2) may require amendment to ensure that relevant entities mentioned in the bill are effectively covered under the Privacy Act. As such, the Privacy Commissioner made the following comment:

The OAIC believes that to ensure the correct interaction between the Privacy Act and the SI Bill and to ensure that Subclause 22(2) achieves its purpose, it should be amended to say: 'an act or practice of an entity that contravenes section 10, 15 or 16 is the subject of an investigation by [replace with: 'a complaint to'] the Information Commissioner under Part V of the Privacy Act'. This would then allow for the full use of the Commissioner's powers under Part V of the Privacy Act.[28]

2.20      DICCSRTE also addressed this matter saying that:

Subclause 22(2)(a) provides that such a contravention is the subject of an investigation by the Information Commissioner under Part V of the Privacy Act. In our view, it is sufficient to use the words 'an investigation by' the Information Commissioner as an individual may make a complaint to the Information Commissioner once there is an act or practice that may be an interference with privacy (s 36(1)) of the Privacy Act) and once a complaint is made then the Privacy Commissioner can investigate it (s 40(1)).[29]

Policing and national security issues

2.21      Submissions from the Police Federation Australia and Victoria Police also raised privacy concerns, in particular that the bill may present a threat to the privacy and security of police officers. The Police Federation Australia noted that the USI 'will involve the collection and storage of the personal information of police officers by an external body' and that 'while the Bill indicates measures will be taken to prevent unauthorised access to personal information, the potential for external access to such information is perceived by policing as a high risk.'[30]

2.22      Victoria Police stated that, as a registered training organisation, it is:

...interested in ensuring that the information availability and dissemination proposed under the framework is managed in a way that protects the identity of sworn members...[particularly] for members who undertake covert, intelligence or investigative roles.'[31]

2.23      Noting that this issue had been raised in previous consultation, DIICCSRTE said that such concerns have been addressed:

The draft SI Bill was amended, with the agreement of the States and Territories, to incorporate flexibility in order to provide for narrow exemptions from the mandatory nature of the scheme in certain circumstances...it has proven necessary to provide for limited exemptions in relation to the USE scheme on matters having national security or policing implications.'[32]

Conclusion

2.24      The committee notes that many students would benefit from the USI – even in some short courses run by companies such as Bluedog. The committee welcomes the broad in-principle support for the legislative framework established by the bill as reflected in the submissions received during the course of this inquiry. The committee commends the Government's commitment to improving transparency and operational efficiency in the VET sector, as well as the underlying benefit these reforms offer to students, particularly in the years after the conclusion of study.

2.25      The committee understands the concerns expressed by the Privacy Commissioner regarding subclause 22(2) and the desirability of a provision requiring entities to issue a privacy notice to an individual before applying for a USI on the student's behalf. The committee maintains that the Privacy Commissioner, having extensive specialisation and experience in this field of law, is well placed to understand how the Privacy Act functions. While the committee notes DIICCSRTE's reassurance that the wording in clause 22(2) is adequate, it encourages the Department to re-examine the Commissioner's suggestion to ensure that the provisions will operate as intended.   

Recommendation 1

2.26      The committee recommends that the Senate pass the bill.

 

Senator Gavin Marshall
Chair, Legislation

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