AUSTRALIAN GREENS
DISSENTING REPORT
Summary
1.1
The Australian Greens are concerned with certain privacy aspects of the
Student Identifiers Bill. We believe the bill does adequately guarantee that
individuals’ access to education and training will not be restricted. It does
not ensure that individuals retain control over their personally linked data,
or consent to the secondary uses of their data.
1.2
The Greens propose the following additional recommendations for
consideration to address these privacy concerns, which are informed by several
of the inquiry’s submissions.
Introduction
1.3
The Student Identifiers Bill 2013 provides for the introduction of a
national unique student identifier (USI) attached to every student undertaking
nationally recognised VET training , so that longitudinal data recording an
individual’s VET studies over their lifetime may be centrally collated, held
and accessed.
1.4
The stated intention for this collection of individual-level data is to:
- enable individuals to access online a consolidated and
authenticated transcript of all their own accredited VET attainments, or
extracts thereof;
- allow RTOs to access those records, with the individual’s
permission, to confirm pre-requisite previous VET study and to allow assessment
of prior learning for course credits; and
-
to provide policy makers and researchers with longitudinal
individual-level data of VET enrolments and achievements over a lifetime.
The benefits
1.5
There are some 2.7 million enrolments across the VET sector each year,
with 810,000 of those attending multiple providers. Many study with RTOs
across state boundaries, and thousands more have completed courses with RTOs
that no longer exist, which means their student transcripts may be lost.
1.6
The Australian Greens recognise that introduction of a national USI
that guarantees students access to their own centrally held and authenticated
transcripts could benefit those hundreds of thousands of students every year
who currently cannot be guaranteed ready access to a complete record of all
their VET study to prove to employers or providers of further study their
attainments.
1.7
The Australian Greens also recognise that comprehensive data from all
VET providers is necessary to create a transparent VET system. It is not
appropriate that currently only government providers are required to report on
all their students while private providers must only report on
Commonwealth-funded student enrolments and outcomes.
1.8
Insufficient and incomplete data disallows accurate understanding of
trends, problems or successes in the VET sector. Information about student flow
and outcomes is required to identify where barriers to student participation
and success lie in the system and where further support and investment is
needed. Such data is vital in revealing where providers and governments are
meeting or failing in performance, and how governments and the sector are
answering Australia’s looming skills needs.
1.9
The Australian Greens share the concerns of a number of submitters and
we list those concerns and recommendations as follows:
Recommendation 1
1.10
The Australian Greens recommend that the Bill include an objects or
purpose clause
1.11
The Australian Greens recognise the Explanatory Memorandum and the
Minister’s Second Reading Speech outline the purpose of the bill, and that the
bill outlines specific purposes in which particular entities may collect, use
or disclose a USI. However we agree with a number of submissions that the
inclusion of an objects or purpose clause that comprehensively lists the
purposes of the scheme is necessary.
1.12
The CEO of the Student Identifiers Agency should have legislative
clarity to guide the exercise of that position’s discretion in a number of
areas including the determination of misuse in Clause 15. Clause 13 also allows
that students’ consent is not explicitly required for the CEO to verify or
provide the USI of an individual to certain entities, despite Clause 8
requiring the authorisation of the individual for application of an USI.
1.13
Clause 21 further, authorises the collection, use or disclosure of an
individual’s USI if the regulations allow it. An objects clause would provide
the parameters any such regulations must sit in.
1.14
An objects clause is also necessary to preclude the possibility of the
USI being used to restrict an individual’s access to government subsidised
training under an ‘entitlement’ model.
1.15
The changing face of the modern workplace demands lifelong learning to
meet the continually changing demands and shape of the workplace that is now a
fact of the labour market. However the Australian Greens are very cognisant of
the push to limit access to free or affordable education and training via an
‘entitlement’ model which only allows an individual one attempt at skilling up
in a government-subsidised place. Any subsequent need to retrain or up-skill
demands the individual pay increasingly unaffordable fees or incurring of debt
via student loans to pay those fees.
1.16
The limiting of access to education and training that occurs with the
shifting of costs to students in a commercialised and funding-contested system
is anathema to the Greens. The potential of the USI linked data being used to
assess the “entitlement” and limit of an individual’s access to further
education and training needs to be ameliorated with an objects clause that
legislatively confirms the purpose of the bill as asserted in the Explanatory
Memorandum and the Minister’s Second Reading Speech.
Recommendation 2
1.17
The Australian Greens recommend that the bill be amended to ensure any
individual retains control of their USI, and must provide informed and explicit
written consent to the provision of their USI and linked records of VET
activity.
1.18
Clearly the protection of privacy is a serious concern about this bill,
and the individual’s control over the collection, use or disclosure of their
USI and their data linked to that USI is pivotal to ensuring the bill does not
interfere with any human rights to privacy or access to secondary education
including technical and vocational secondary education as determined by Article
13(2)(b) of the International Covenant on Economic, Social and Cultural Rights.
1.19
As per our introduction, the Australian Greens acknowledge that the
de-identified longitudinal data describing an individual’s pathway
through the VET system is in itself valuable and poses no risk to individual
rights as mentioned above.
1.20
We also recognise that RTOs are already required to collect and submit
to AVETMISS student information collected from the student at the time of
enrolment. This information includes age and sex, and cultural, disability and
geographic information, as well as where, what and outcomes of study.
1.21
Further we support an individual having the ability to access their own
complete or extracted VET transcripts by use of their USI, which effectively is
the key linking their identify to their records.
1.22
That the USI will be held with the Agency, while individual
de-identified training records will be held separately on a NCVER database, is
to be commended. Further the requirement that an individual must consent before
the collection, use or disclosure of their USI and linked data is commended.
1.23
However there are a number of clauses that effectively remove the
individual’s consent, rendering the cornerstone protection non-existent.
1.24
The Australian Greens support the AEU recommendation that the implied
consent of an individual as described in Clause 18 be removed and replaced with
“express and informed consent”. The use of implied consent is a nonsense, and
at odds with the asserted intention that individuals will always retain control
of their USI.
1.25
Clauses 13 and 21 also allow an entity to collect, use and disclose a
USI if the regulations authorise so, and without explicit consent or even
knowledge of the individual. These clauses should mirror a requirement for
explicit consent from the individual if the data is to be linked to the
individual’s USI, and effectively revealing that person’s own identity and
linked VET records.
1.26
As already discussed, the lack of an object clause further removes any
guidelines that might otherwise provide clarity and thus accountability as to
the purposes to which the USI may be collected, used or disclosed.
1.27
The Australian Greens note that lack of explicit consent by the
individual would only remove the identification of the individual and that the
de-personalised data would still be available as an important resource to
government and researchers.
Recommendation 3: That the bill be amended to include a
range of penalty provisions enforceable through the Federal Court for
contravention of the Bill’s provisions.
1.28
As mentioned above, the Australian Greens accept that any breaches of
the bill’s provisions constitute breaches of the Privacy Act with its civil
penalty provisions.
1.29
However we also accept the AEU’s contention that the Criminal Offences
in other legislation require too high a threshold to establish all the elements
of an alleged crime; that investigations under Privacy Act are largely based on
complaints being pursued by the affected individual; and that enforcement must
be pursued separately through Federal Court action.
Recommendation 3
1.30
The Australian Greens recommend that an explicit definition of “misuse”
be included in the bill
1.31
The Australian Greens understand that privacy provisions in the bill
complement and mirror existing federal, state and territory privacy
legislation, and accept that the breaches of the bill’s provisions constitute
breaches of the Privacy Act 1988 with its civil penalty provisions.
1.32
However Clause 15, while determining the CEO of the Student Identifier
Agency and other entity must take reasonable steps to protect a USI from
misuse, among other things, does not provide clarity as to what exactly
constitutes “misuse”.
1.33
The insertion of an objects clause would go some way to providing that
guidance, however a definition of ‘misuse’ is required to provide clarity.
Recommendation 4
1.34
The Australian Greens recommend that the bill be amended to require an
RTO, VET admission body or other entity to provide a privacy notice to a
student when the entity applies for a USI on the student’s behalf.
1.35
The Australian Greens support this recommendation which is made by the
Australian Privacy Commissioner in the OAIC submission to this inquiry.
1.36
While the Student Identifier Agency is an “agency” under the Privacy Act
and therefore obliged to provide a privacy notice to an individual who applies
for a USI directly from the Agency, some entities that may apply for a USI on a
student’s behalf may not be covered by the Privacy Act or state/territory
privacy provisions.
1.37
It is noted that the Department will be providing RTOs and other
entities with a template privacy notice, and that a privacy notice will appear
on screen when an individual initially logs on to the online USI system.
1.38
However, the Australian Greens agree with the Privacy Commissioner’s
submission that only a legislative requirement for provision of a privacy
notice to students will guarantee this will occur, and that “best privacy
practice would be to include a provision about privacy notices” in the bill.
Recommendation 5
1.39
The Australian Greens recommend that Clause 22(2) be amended using the
wording advised by the Privacy Commissioner.
1.40
The Committee encourages the Department to re-examine the wording in
Clause 22(2) to ensure the correct interaction between the Privacy Act and this
bill and that the Privacy Commissioner is legally allowed jurisdiction to
investigate complaints.
1.41
Whilst the Department has responded to the Privacy Commissioner’s
submission by stating its satisfaction that the wording will achieve the
required interaction between the two pieces of legislation, the Australian
Greens agree with the Committee’s observation that the Privacy Commissioner is
well placed to provide a more expert advice in this field of law.
1.42
The Australian Greens thus recommend Clause 22(2) be amended as
suggested by the Privacy Commissioner, which will ensure that the
Commissioner’s jurisdiction over an entity to be investigated is triggered by a
complaint to the Commissioner, and exists prior to the commencement of
any investigation. As advised by the Australian Privacy Commissioner’s
submission, this then enables all the Commissioner’s powers under Part V of the
Privacy Act.
Recommendation 6
1.43
The Australian Greens recommend that exemptions to provisions of the
bill applying to police personnel undertaking training as part of their
policing qualifications be clarified and concerns expressed by Victoria Police
and Police Federation of Australia be answered.
1.44
The Australian Greens recognise the concerns that provisions of this
bill, where they apply to training undertaken by police officers as part of
their duties may pose a risk to the privacy and security of serving police
officers or those undertaking training within the context of national security.
1.45
Whilst the Department states the bill incorporates flexibility to
provide for narrow exemptions from the mandatory nature of the scheme in
certain circumstances, the Australian Greens request clarity in this regard.
Recommendation 7
1.46
The Australian Greens recommend that the bill be amended to explicitly
state that no fees will be charged to individuals by any entity
1.47
Whilst the intention is that application for the USI or accessing of
transcripts by the individual will not incur costs, the Australian Greens agree
with submitters’ recommendation that the bill explicitly state no fees will be
charged to individuals by any entity acting with the express consent of that
individual within the framework of the bill.
Recommendation 8
1.48
The Australian Greens recommend that clarification be sought as to the
realtime uploading of student transcripts by RTOS.
1.49
AVETMISS direct data submission are required to be uploaded by 31 March
for the previous year’s data. This suggests that students who complete their
qualifications at the end of a 12 month period would not see their
qualifications appear in the new verified system for at least 12 months. This
would defeat some of the purpose of the system to have real-time transcripts
available to individuals.
1.50
The Australian Greens seek clarification about the realtime uploading
and accessibility of student transcripts.
Recommendation 9
1.51
The Australian Greens recommend that the bill not be debated until the
Minister publishes responses to requests for clarification by the Senate
Standing Committee for the Scrutiny of Bills and by the Parliamentary Joint
Committee on Human Rights, as noted by this Committee.
1.52
The Australian Greens agree with the Committee’s wish that the
clarification sought by the Senate Standing Committee for the Scrutiny of Bills
and by the Parliamentary Joint Committee on Human Rights about a number of
clauses should be answered prior to the passage of the bill.
1.53
We recognise both Committees support the bill, notwithstanding the
request for clarification, however the Australian Greens recommend that this
clarification must be provided prior to the Senate debating this
bill.
1.54
The Senate Standing Committee for the Scrutiny of Bills has requested of
the Minister advice about Clauses 21, 25, 53 and 57, the details of which are
listed in the Majority Report.
1.55
As also noted in the Majority report, the Parliamentary Joint Committee
on Human Rights has sought clarification about how the provisions relating to
the collection, use and disclosure of USIs are consistent with the right to
privacy. It has also asked about the circumstances in which exemptions to the
requirement for a USI are permitted under the bill.
1.56
The Greens look forward to the Minister providing that clarification so
that the bill may be debated.
Recommendation 10
1.57
The Australian Greens recommend that the requirement the authenticated
VET transcript include the source of funding for the unit, module or course
studied by the individual be removed.
1.58
The Australian Greens see no reason why a VET transcript should include
the source of funding for any subjects or courses studied by an individual.
Whilst the flow and outcomes of government funded and subsidised student places
is important information, we see no reason why it should be coupled to an
individual’s personal identification or transcript and seek advice about
alternative methods of analysing and assessing the efficacy and transparency of
publically funded VET.
1.59
The inclusion of such information otherwise suggests an intention by
government to limit an individual’s access to VET via an entitlement framework,
which is not a stated aim of this bill in any of the legislative package, and
which the Greens strongly reject.
Recommendation 11
1.60
The Australian Greens recommend that Clause 53 be amended to provide
clarity that the operative date for the scheme starts on 1 January 2014, and
that students may be issued a VET qualification or a Statement of Attainment
without a USI up until that date.
1.61
Both AEU and ACTU point out that Clause 53, which requires that an
individual must obtain a USI before they can be issued with a VET qualification
or a Statement of Attainment, is inconsistent with the clear intention that
requirements of the scheme do not commence until 1 January 2014.
1.62
Clause 53 must be amended to concur with the starting date, and clarify
that providers must still provide qualifications or transcripts for students
who completed their training prior to 1 January 2014.
Conclusion
1.63
As discussed in our Introduction, the Australian Greens recognise the
benefit this bill could potentially have for students in readily accessing
their own collated and verified transcripts; and to ensure quality data that
will increase transparency and responsiveness of governments and VET providers
to the requirements of students and needs of industry.
1.64
However this bill, as it currently stands, does not provide the
guarantees needed to ensure that individuals’ access to education and training
will not be restricted.
1.65
It does not ensure the individual retains control over their personally
linked data; and it does not clearly prohibit secondary or extraneous uses of
the USI-linked data unless always expressly and knowingly consented by the
individual.
1.66
The bill at a minimum needs an object clause articulating details of its
purpose; an effective and accessible regime of offences and penalties
that do not rely on the individual’s ability to make a complaint; and the
guarantee that the concerns mentioned above are addressed.
Senator Lee Rhiannon
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