Bills Digest No.
71, 2019–20
PDF Version [563KB]
Dr Hazel Ferguson
Social Policy Section
28 January 2020
Contents
Purpose of the Bill
Background: The Unique Student
Identifier
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 28
November 2019
House: House of
Representatives
Portfolio: Employment,
Skills, Small and Family Business
Commencement: The
day after the Act receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at January 2020.
Purpose of
the Bill
The purpose of the Student
Identifiers Amendment (Enhanced Student Permissions) Bill 2019 (the Bill)
is to amend the Student
Identifiers Act 2014 (the Act) to make changes to the administration of
the Unique Student
Identifier (USI).[1]
Namely, the Bill proposes to:
- expand
the range of bodies that can use the USI service to access a person’s
transcript
- introduce
a civil penalty regime to cover certain contraventions of the Act
- clarify
arrangements related to the administration of the Student Identifiers Special
Account and
- introduce
arrangements for a person to apply to be exempt from the requirement to have a
USI.
Background: The
Unique Student Identifier
Introduced in January 2015, the USI is a reference number
that allows a student’s Australian vocational education and training (VET)
records to be accessed electronically in one place, for life, irrespective of which
provider the training was undertaken with.[2]
Unless they are exempt, students are required to have a USI in order to be
issued a VET qualification or statement of attainment.[3]
At 30 June 2019, over 9.9 million USIs had been created.[4]
The USI is administered by the Student Identifiers
Registrar (the Registrar), supported by the USI Office, and the Registrar’s
functions are funded from the Student Identifiers Special Account.[5]
Committee
consideration
Senate Education
and Employment Legislation Committee
At its meeting of 4 December 2019, the Senate Selection of
Bills Committee determined that the Bill be referred to the Education and
Employment Legislation Committee for inquiry and report by 19 February 2020.[6]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills has
considered the Bill and requested:
- the
Minister’s advice as to why matters to be considered when making a
determination to exempt a student from the requirement to have a USI should be
in delegated legislation, and if the Bill could be amended to include ‘at least
high-level guidance’ in the Act
- more
detailed advice from the Minister as to why merits review will not be available
in relation to such determinations by the Registrar.[7]
At the time of writing, the Minister’s response had been
received, but not yet published, by the Committee.[8]
Policy
position of non-government parties/independents
At the time of writing, no non-government
parties/independents have commented on the measures proposed in the Bill.
Position of
major interest groups
At the time of writing, no major interest groups have
commented on the measures proposed in the Bill.
Financial
implications
The Explanatory
Memorandum to the Bill states that the changes are not expected to have any
financial impact.[9]
Statement of
Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[10]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not considered the Bill.[11]
Key issues and
provisions
Access to authenticated
VET transcripts
In 2017, an authenticated VET transcript (the
transcript) was introduced to the USI initiative.[12]
The transcript is a document prepared by the Registrar that details the VET study
undertaken by the individual, as prescribed by the regulations (currently the Student Identifiers
Regulation 2014).[13]
According to the Office of the Registrar:
USI account holders can use their USI to access their
national training record online in the form of a USI Transcript. The transcript
should include details of all non-exempt nationally recognised training
completed since 1 January 2015 and available as part of the
national VET collection.[14]
In 2018–19, 571,242 authenticated VET transcripts
were viewed using the USI’s online service.[15]
Currently, section 28 of the Act allows for all or part (‘an
extract’) of the transcript to be released to:
- a
registered training organisation (RTO) or
- a
VET‑related body.[16]
The release of this information is subject to access
controls set by the individual, and must not be released unless
these controls have been set up.[17]
Under paragraph 32(1)(f) of the Act, the Registrar is
required to establish and maintain a mechanism to enable an individual to set access
controls on:
- the
RTOs and VET‑related bodies that may request access to their
authenticated VET transcript and
- the
RTOs and VET‑related bodies that may request access to an extract of their
authenticated VET transcript, and the content of the extract.
Items 1, 4 to 6, 8 and 10 make amendments to the
Act to expand the range of bodies that can be provided with access to a
transcript under the Act. Of these items, items 6, 8 and 10 propose to
add references to an ‘other entity’ to sections 28 and 32. The remaining items
make consequential amendments, including amending the simplified outline of the
Act (item 1, which amends section 3 of the Act), amending the simplified
outline of Part 3 – Authenticated VET transcripts (item 4, which amends
section 26 of the Act) and amending the heading of section 28 (item 5). The
requirements related to access controls are retained. Item 7
inserts a note at the end of subsection 28(1) to clarify that the Registrar may
disclose personal information in a transcript in accordance with Australian
Privacy Principle 6.[18]
Entity is defined in section 4 of the Act as
a person, partnership, any other unincorporated association or body, or a
trust. The Explanatory
Memorandum to the Bill provides the examples of employers, employment
agencies, and licensing bodies as entities which may make use of the proposed
access arrangements.[19]
A new civil
penalty regime
The Act does not currently contain any civil penalty
provisions. Item 9 adds a new civil penalty regime to the Act at proposed
Part 3A.
Proposed section 29A contains a simplified outline
of proposed Part 3A, which specifies that the civil penalty provisions
will be for conduct relating to applying for student identifiers, altering a
transcript or extract, or making a document purporting to be a transcript or
extract.
Penalties
relating to applications for student identifiers
Proposed section 29B contains the proposed
penalties related to applications for student identifiers.
The USI is intended to be a single number allocated for
life.[20]
Section 9 of the Act allows an individual to apply for their own USI, or to
authorise an RTO, VET admission body, or other entity, to apply for a USI for
them. In either case, the Registrar has in place arrangements to ensure the student
activates their own USI account by clicking a link that is sent to contact
details they nominate.[21]
Under paragraph 10(1)(b) of the Act, the Registrar must
not assign a USI to a student who already has one. The Act does not currently
place any onus on an individual not to apply for a USI a second time, or
authorise such an application.
Under proposed subsection 29B(1), if an individual
has already been assigned a USI, which has not been revoked, and they either
apply for a USI, or authorise an entity to make an application for a USI for
them, they will be liable to a civil penalty of 60 penalty units ($12,600).[22]
However, the note to proposed subsection 29B(1)
of the Bill states that section 95 of the Regulatory Powers
(Standard Provisions) Act 2014 (the Regulatory Powers Act) deals
with mistakes of fact. This section provides that a person is not liable to
have a civil penalty order made against them if, at or before the time they act
in apparent contravention of a civil penalty provision:
- they
considered the facts and
- were
under a mistaken but reasonable belief about those facts and
- had
they been correct, their actions would not have constituted a contravention of
the civil penalty provision.
This means the proposed civil penalty for applying for a
second USI would not apply if an individual genuinely was not aware they already
had a USI when making a second application.
Additionally, under proposed subsection 29B(2), if
an individual applies to the Registrar for a USI for someone else, without
being authorised by that person, they will be liable to a civil penalty of 60
penalty units.
Penalties
relating to authenticated VET transcripts
Proposed section 29C would apply a civil penalty of
60 penalty units to the following actions related to transcripts:
- altering
a transcript
- altering
an extract, prepared by the Registrar from a transcript
- making
a document that is not, but purports to be, a transcript or
- making
a document that is not, but purports to be, an extract.
Enforcement
Proposed section 29D allows for enforcement of the
proposed civil penalty provisions under the Regulatory Powers Act,
including that:
- civil
penalty provisions can be enforced by obtaining an order for a person to pay
the penalty for contravening a provision, as per Part 4 of the Regulatory
Powers Act
- the
Registrar can exercise the powers of an authorised applicant as
set out in section 80 of the Regulatory Powers Act, including the
ability to apply to a relevant court for an order that a person who has
contravened a civil penalty provision pay the Commonwealth a pecuniary penalty
and
- the
relevant courts for the purposes of the enforcement of civil penalty provisions
under the Act are the Federal Court of Australia and the Federal Circuit Court
of Australia.
Proposed section 29E deals with infringement
notices with reference to the Regulatory Powers Act, specifically:
- infringement
notices in relation to the proposed civil penalty provisions may be issued subject
to Part 5 of the Regulatory Powers Act, which provides that:
A person who is given an
infringement notice can choose to pay an amount as an alternative to having
court proceedings brought against the person for a contravention of a provision
subject to an infringement notice under this Part. If the person does not
choose to pay the amount, proceedings can be brought against the person in
relation to the contravention.[23]
- for
the purposes of issuing an infringement notice in accordance with Part 5 of the Regulatory Powers Act, the Registrar is the infringement officer and
chief executive and
- the
Registrar may, in writing, delegate their powers under Part 5 of the Regulatory
Powers Act to a Senior Executive Service (SES), acting SES, Australian
Public Service (APS) Executive Level 2, or acting APS Executive Level 2
employee of the department, and the delegate must comply with any written
directions of the Registrar.
Items 2 and 3 make consequential amendments
to:
- reflect
the new civil penalty regime in the simplified outline of the Act at section 3
and
- add
definitions of civil penalty provision and Regulatory
Powers Act to the dictionary at subsection 4(1) of the Act.
The Student
Identifiers Special Account
The Bill also proposes amendments to clarify and add to the
Registrar’s powers under the Act in relation to the Student Identifiers Special
Account (the Account).
The Account is created by section 48 of the Act and notes
that it is a special account for the purposes of the Public Governance,
Performance and Accountability Act 2013. An Act that
establishes a special account specifies the purposes for which the special account
can be debited.[24]
Section 50 of the Act sets out the following purposes of the Account:
(a) paying
or discharging the costs, expenses and other obligations incurred by the
Commonwealth in the performance of the Registrar’s functions;
(b) paying any remuneration and allowances payable to
any person under this Act;
(c) meeting the expenses of administering the Account.
Although these functions make it clear that the
Registrar’s functions are to be funded from the Account, the Act does not
currently specify who is responsible for managing the account. Item 11
proposes to add managing the Account to the Registrar’s functions, which are
set out in section 32. Proposed paragraph 32(1)(fa) adds ‘managing the
Account in such a way that ensures that the balance of the Account is
sufficient to cover debits of amounts for the purposes of the Account’ to
section 32.
Item 12 adds ‘or the exercise of the Registrar’s
powers’ after ‘functions’ to paragraph 50(a), so that the subsection would
read ‘paying or discharging the costs, expenses and other obligations incurred
by the Commonwealth in the performance of the Registrar’s functions or the
exercise of the Registrar’s powers’. This amendment clarifies that the Account
can be debited for costs relating to the exercise of the Registrar’s powers
under the Act as well as their legislated functions.
Section 46 allows the Registrar to arrange secondments of
Commonwealth or state or territory officers to the Office of the Registrar, and
reimburse states or territories for the services of their officers. Section 47
allows the Registrar to also engage consultants to assist with the Registrar’s
functions. However, costs associated with reimbursing states or territories for
their officers, or paying consultants, are not explicitly included in the purposes
of the Account listed in section 50. Item 13 therefore adds proposed
paragraphs 50(ba) and 50(bb), which list these expenses.
Exemptions
given by the Registrar
As outlined in the background to this Bills Digest, section
53 of the Act requires non-exempt VET students to have a USI in order to be
issued a qualification or statement of attainment. The obligation under section
53 is placed on the relevant RTO. Subsection 53(3) allows the Minister to make
an instrument setting out exemptions to this requirement, providing, as per
subsection 53(4), that the Minister first obtains the agreement of the
Ministerial Council (currently the Council
of Australian Governments Skills Council).[25]
The exemptions determined by the Minister can be in reference to the following:
- the
RTO doing the issuing
- the
VET qualification or statement of attainment being issued and/or
- the
individual to whom the qualification or statement of attainment is being issued
(that is, the student).[26]
The Student Identifiers
(Exemptions) Instrument 2018 (the Exemptions Instrument) provides for the
following exemptions with reference to RTOs:
- where
the collection and submission of data by the RTO would conflict with defence or
national security legislation or could jeopardise the security of defence,
border protection, customs, national security or police personnel
- where
the RTO is providing emergency or safety related services to the Australian
community and the RTO:
- is
registered as a charity with the Australian Charities and Not-For-Profits
Commission
-
provides volunteers, employees, contractors or other students
with training or assessment in a VET course, for which it receives no payment
and
- its ability to provide services to the community may be adversely
impacted if it was required to collect and submit compliant data.[27]
The Exemptions Instrument provides for the following
exemptions with reference to students:
- where
a student is not an Australian citizen and has studied offshore
- where
a student has completed the requirements for a VET qualification or statement
of attainment prior to 1 January 2015
- where
a student has declared that they have a genuine personal objection to being
assigned a USI and understand the consequences and potential consequences of
not being assigned a USI.[28]
Item 15 repeals subsection 53(4), which currently
covers approval of the Exemptions Instrument by the Ministerial Council, and inserts
new exemption provisions covering individual requests for exemption to be
decided by the Registrar. The ability for the Commonwealth Minister to grant an
exemption is retained, as highlighted by the new heading inserted by item 14.
The requirement to secure the agreement of the Ministerial Council for the
Exemption Instrument is also retained at proposed subsection 53(12). This
requirement to secure agreement would also apply if the Commonwealth Minister
chooses to make an instrument setting out matters to be considered by the
Registrar in determining if an individual exemption application is to be
granted (proposed subsection 53(9)).
In summary, the proposed additions to section 53 are:
- proposed
subsection 53(5) would allow an individual to request the Registrar make a
determination that the USI requirement not apply to them
- proposed
subsection 53(6) would require the Registrar to make, or refuse to make,
the requested determination in writing―under proposed subsection
53(10) such a determination is not a legislative instrument
- proposed
subsection 53(7) would require the Registrar to have regard to matters (if
any) determined in an instrument made under proposed subsection 53(9)
- proposed
subsection 53(8) would require the Registrar to give the individual notice
of the Registrar’s decision, including, if relevant, reasons for a refusal
- proposed
subsection 53(9) would allow the Commonwealth Minister to make a
legislative instrument setting out the matters to be considered in making a
decision about an exemption at the request of the individual―such an
instrument would be subject to agreement of the Ministerial Council, under proposed
subsection 53(12). Proposed subsection 53(13) allows for matters covered
by subsection 53(3) and proposed subsection 53(9) to be included in the
same instrument
- proposed
subsection 53(11) would provide that if the Registrar issues a USI to an
individual with an exemption under proposed subsection 53(6), this action
would be taken to revoke the exemption
- proposed
subsection 53(12) requires agreement of the Ministerial Council for the
Commonwealth Minister to make a legislative instrument under subsection 53(3),
or proposed subsection 53(9).
As outlined earlier in this Bills Digest, the analysis of
the Bill by the Senate Standing Committee for the Scrutiny of Bills focuses on
these proposals, stating:
The committee's view is that significant matters, such as the
matters that must be considered by the Registrar when making a determination to
exempt a student from the requirement to have a student identifier, should be
included in primary legislation unless a sound justification is provided.[29]
The Committee also draws attention to the fact that the
arrangements proposed in the Bill for a determination by the Registrar as to a
person’s exemption from the USI do not include the possibility of review by the
Administrative Appeals Tribunal.[30]
The Committee raises questions about the justifications for this approach
provided in the Explanatory Memorandum to the Bill, which relate to the small
proportion of individuals likely to seek an exemption, and likely delays
resulting from a review.[31]
[1]. Australian
Government, ‘History of the
USI’, Unique Student Identifier (USI) website, last modified 26 February
2019.
[2]. Australian
Government, ‘About the USI and training’,
USI website, last modified 26 February 2019.
[3]. Student Identifiers
Act 2014 (the Act), section 53.
[4]. Department
of Education (DoE), 2018-19
Annual report, DoE, Canberra, 2019, p. 137.
[5]. The
Act, Part 4; DoE, 2018–19
Annual report, op. cit., pp. 137–138.
[6]. Senate
Standing Committee for Selection of Bills, Report,
10, 2019, The Senate, Canberra, 5 December 2019, pp. 3–4.
[7]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny digest,
10, 2019, 5 December 2019, pp. 19–20.
[8]. Senate
Standing Committee for the Scrutiny of Bills, ‘Ministerial
responses’, The Senate, Canberra, accessed 28 January 2020.
[9]. Explanatory
Memorandum, Student Identifiers Amendment (Enhanced Student Permissions)
Bill 2019, p. 1.
[10]. The
Statement of Compatibility with Human Rights can be found at page 13 of the Explanatory
Memorandum to the Bill.
[11]. Parliamentary
Joint Committee on Human Rights, Index
of Bills and instruments considered by the committee,
19 September 2019.
[12]. Australian
Government, ‘Transcript/Training
Record’, USI website, last modified 28 October 2019.
[13]. The
Act, section 4.
[14]. Australian
Government, ‘Transcript/Training
Record’, op. cit.
[15]. DoE,
2018–19
Annual report, op. cit., p. 137.
[16]. VET‑related
body is defined in section 4 of the Act as an Australian
Government or state or territory department that deals with matters relating to
VET (including funding), a body (whether incorporated or not) established by or
under a law of the Commonwealth, a state or a territory that performs functions
relating to VET (including funding), a VET Regulator, or an
entity specified in an instrument made by the Registrar for that purpose, under
subsection 4(3). VET Regulator is defined in section 3 of the National Vocational
Education and Training Regulator Act 2011 as the National VET Regulator
(that is, the Australian Skills Quality
Authority) or a body of a non‑referring
state (that is, the Victorian
Registration and Qualifications Authority and the Western
Australian Training
Accreditation Council).
[17]. The
Act, subsections 28(1) and 28(3).
[18]. For
more information on Australian Privacy Principle 6, see: Office of Australian
Information Commissioner (OAIC), ‘Australian
Privacy Principles guidelines: chapter 6: APP 6 – use or disclosure of personal
information’, OAIC website, 22 July 2019.
[19]. Explanatory
Memorandum, Student Identifiers Amendment (Enhanced Student Permissions)
Bill 2019, p. 5.
[20]. Australian
Government, ‘About the USI and training’,
op. cit.
[21]. Australian
Government, ‘What
does activating your USI account mean?’, USI website, last modified 10
August 2018.
[22]. One
penalty unit is currently $210, as per section 4AA of the Crimes Act 1914.
[23]. Regulatory Powers
(Standard Provisions) Act 2014, section 98.
[24]. Department
of Finance (DoF), ‘Guide
to appropriations (Rmg 100): special appropriations: special accounts’, DoF
website, updated 12 December 2019.
[25]. Section
4 of the Act defines Ministerial Council as the body established
by the Council of Australian Governments to deal with training and skills or
otherwise a body prescribed by the regulations.
[26]. The
Act, subsection 53(3).
[27]. Student Identifiers
(Exemptions) Instrument 2018, section 7.
[28]. Ibid.,
section 8. See also: Australian Government, ‘Exemptions
from reporting the USI’, USI website, last modified
10 October 2018.
[29]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny digest,
10, 2019, op. cit., p. 19.
[30]. Ibid.,
pp. 19–20.
[31]. Ibid.
See also: Explanatory
Memorandum, Student Identifiers Amendment (Enhanced Student Permissions)
Bill 2019, p. 11.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.