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On 5 December 2019 the Senate referred the provisions of the Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019 (the bill) to the Education and Employment Legislation Committee (the committee) for inquiry and report by 19 February 2020.
Conduct of the inquiry
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The committee advertised the inquiry on its website and wrote to relevant persons and organisations seeking submissions by 23 January 2020. The committee received four submissions, which are listed at Appendix 1 and are available on the committee's website.
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The committee did not hold any public hearings.
Scope and structure of the report
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This report comprises two chapters. The remaining sections of this chapter provide background to the bill, an overview of the bill including its purpose and key provisions, and comments made on the bill by other committees. Chapter 2 outlines the principle issues raised in evidence and presents the committee's views and recommendation.
Background
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The Student Identifiers Act 2014 (Student Identifiers Act) creates a framework for the allocation of a unique student identifier (USI) to persons undertaking vocational education and training (VET) from 1 January 2015. The Act also provides for the creation and administration of authenticated VET transcripts, and for the appointment of the Student Identifiers Registrar (the Registrar).
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The Student Identifiers Act provides that the Registrar may, on request, give a person who has been assigned a USI access to their authenticated transcript. The Registrar may also permit a registered training organisation (RTO) or a VET-related body access to a person's authenticated VET transcript. However, the Registrar may only grant access to those entities in accordance with access controls set by the person to whom the transcript relates.
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Since 22 May 2017, persons that hold a USI have been able to access, view and download their authenticated VET transcripts via the USI Transcript Service. The Service also allows RTOs and VET-related bodies to access authenticated transcripts, provided they have been granted permission by the holder of the USI. In 2018-2019, 571 242 authenticated VET transcripts were viewed using the USI Transcript Service.
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Since the activation of the USI Transcript Service, employers, employment agencies and licensing bodies have shown interest in accessing authenticated VET transcripts to verify an individual's qualifications and to streamline recruitment and application processes. However, at present access is restricted to RTOs and VET-related bodies. For other entities, transcripts can only be verified by contacting the relevant RTO, which is time consuming.
Purpose of the bill
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The bill proposes to amend the Student Identifiers Act, to expand the range of entities which may seek to access an individual's authenticated VET transcript. The explanatory memorandum describes the intent of the measures as follows:
[The bill is] intended to make it simpler for employers, employment agencies and licensing bodies, and others, to validate an individual's [VET] qualifications. As such these amendments are intended to assist, in particular, the integrity of recruitment processes and applications for licenses in skilled professions and occupations.
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The bill also seeks to introduce a civil penalty regime, which is enforceable through civil penalty proceedings and the issue of infringement notices. The regime is designed to protect the integrity of the USI framework, and to act as a deterrent to those who seek to apply for multiple USIs, alter authenticated transcripts (or extracts), or fraudulently represent that a document is an authenticated transcript (or extract).
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Finally, the bill seeks to allow the Registrar to exempt students from the requirement to hold a USI in order to obtain a VET qualification or statement of attainment. It also seeks to make minor technical changes to clarify the Registrar's powers in relation to the Student Identifiers Special Account.
Key provisions
Expanding the range of entities permitted to access authenticated VET transcripts
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Items 1, 4, 6, 8 and 10 of the bill seek to amend the Student Identifiers Act to insert references to 'other entities'. The effect of these amendments would be to expand the range of entities permitted to access a person's authenticated VET transcript—subject to access controls set by that person.
Civil penalty provisions
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Item 9 of the bill seeks to insert new Part 3A into the Student Identifiers Act to establish a civil penalty regime. Under proposed Part 3A, a person may be subject to a civil penalty where the person:
applies for a USI, or authorises an entity to apply for a USI on their behalf, in circumstances where the person already holds an identifier;
applies to the Registrar for a USI to be assigned to an individual, where the individual has not authorised the application;
alters an authenticated transcript; or
fraudulently represents that a document is an authenticated transcript.
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The penalty amount in each case would be 60 penalty units ($12 600). The bill proposes that the civil penalty provisions would be enforceable under the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).
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The bill also proposes that the civil penalty provisions would be subject to an infringement notice under the Regulatory Powers Act. In this respect, the Registrar would be empowered to issue an infringement notice to a person the Registrar reasonably believes to have contravened a civil penalty provision.
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The bill also seeks to allow the Registrar, in writing, to delegate the power to issue an infringement notice to an officer of the Australian Public Service at the Executive Level 2 level or higher.
Exemptions given by the Registrar
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Under the Student Identifiers Act, an individual must hold a USI in order to obtain a VET qualification or statement of attainment.
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The bill seeks to amend the Student Identifiers Act to permit the Registrar, by legislative instrument, to exempt an individual from these requirements.
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In deciding whether to grant an exemption, the Registrar would be required to consider any matters determined by the minister by legislative instrument.
Financial impact statement
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The explanatory memorandum states that amendments contained in the bill will have no financial impact.
Statement of compatibility with human rights
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The statement of compatibility with human rights asserts that the bill is compatible with the human rights and freedoms recognised in the instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Consideration by other committees
Senate Standing Committee for the Scrutiny of Bills
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The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) considered the bill in its Scrutiny Digest 10 of 2019.
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The Scrutiny Committee noted that the bill would permit the minister to determine, by legislative instrument, the matters the Registrar must consider in deciding whether to exempt a person from the requirement to hold a USI in order to obtain a VET qualification or statement of attainment. The Scrutiny Committee expressed the view that such matters may be more appropriate for enactment in primary legislation, and sought the minister's advice as to:
why it is considered necessary and appropriate to leave the relevant matters to delegated legislation; and
whether it would be appropriate for the bill to be amended to set out at least high-level guidance in relation to those matters in primary legislation.
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The Scrutiny Committee also raised concerns that exemption decisions would not be subject to merits review by the Administrative Appeals Tribunal (AAT), and sought the minister's detailed advice as to why merits review would not be available. In doing so, the Scrutiny Committee indicated that the minister should identify established grounds for excluding a review mechanism, in accordance with guidance published by the Administrative Review Council.
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The Minister for Employment, Skills, Small and Family Business, Senator the Hon Michaelia Cash MP, responded to the Scrutiny Committee by letter dated 19 December 2019.
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In relation to the proposal to include in delegated legislation the matters the Registrar must consider when granting an exemption, the minister advised that the amendments proposed by the bill would not significantly alter existing arrangements under the Student Identifiers Act. Rather, they propose to clarify procedural aspects of the exemptions process.
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The minister also advised that including the relevant matters in a legislative instrument, rather than in primary legislation, ensures that the USI regime will be able to adapt to the changing circumstances of students. The minister also noted that the making of such legislative instruments must be agreed by the COAG Skills Council minister, and will be subject to parliamentary scrutiny.
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In relation to why exemption decisions would not be subject to merits review, the minister advised that the determinative issue from the standpoint of a student or an RTO is whether a qualification or statement of attainment may be issued. In this regard, the minister advised that where the Registrar refuses to grant an exemption to the requirement to hold a USI, the relevant student can simply apply for a USI (rather than going through the costly and potentially lengthy process of seeking review by the AAT).
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The minister also advised that it is important to reserve the AAT's limited resources for matters where genuine issues that turn on merits are in dispute. The minister advised that the matters underpinning the Registrar's decision to grant an exemption are unlikely to lend themselves to factual dispute.
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Finally, the minister advised that the merits review process appears to be disproportionate to the nature of the exemption decision, particularly given that the number of individuals seeking an exemption will be negligible in comparison to the number of USIs issued by the Registrar.
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In light of the detailed information provided by the minister, the Scrutiny Committee requested that key information be included in the explanatory memorandum and made no further comments.
Parliamentary Joint Committee on Human Rights
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The Parliamentary Joint Committee on Human Rights (PJCHR) had no comment on the bill.
Acknowledgements
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The committee thanks those organisations who contributed to the inquiry by preparing written submissions.