Purpose of the Bill

The purpose of the Student Identifiers Amendment (Higher Education) Bill 2019 (the Bill) is to amend the Student Identifiers Act 2014 (the Act) to extend the application of the Unique Student Identifier (USI),[1] which is currently in use in the vocational education and training (VET) sector, to the higher education sector. This would give effect to the 2019–20 Budget commitment to extend the USI to higher education to simplify access to education and training records for students.[2] The Bill proposes to make the USI available to higher education students from 2021 and mandatory for non-exempt higher education awards from 1 January 2023. 

The Bill also includes a number of minor amendments to the Act arising from the recently passed Education Legislation Amendment (Tuition Protection and Other Measures) Act 2019 and contingent on the commencement of the Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019, which are not detailed in this Bills Digest. 

Background

The Unique Student Identifier

The process of introducing a USI commenced in 2009, when the Council of Australian Governments (COAG)

... gave its in-principle support for the introduction, from 2012, of a national unique student identifier for the VET sector that is capable of being fully integrated with the entire education system, and could involve early childhood education.[3]

Following its inclusion in the 2012 National Partnership Agreement on Skills Reform, which set out structural reforms for the VET sector, the USI commenced for VET students on 1 January 2015.[4]

Under current arrangements, each non-exempt VET student is assigned a single number, for life, which is linked to an electronic record of their Australian VET study.[5] From commencement to 30 June 2019, over 9.9 million USIs have been created.[6] Having a USI is a condition of being issued a VET qualification or statement of attainment.[7]

Individuals, registered training organisations (RTOs), and some VET-related bodies can use the USI service to access an authenticated VET transcript detailing all non-exempt nationally recognised training since 1 January 2015 for a person, subject to access controls set by that person.[8] In 2018–19, 571,242 authenticated VET transcripts were viewed using the USI’s online service.[9]

The USI is administered by the Student Identifiers Registrar (the Registrar), supported by the USI Office.[10]

The Commonwealth Higher Education Student Support Number

Although the USI is not currently used in the higher education sector, a similar function is performed by the Commonwealth Higher Education Student Support Number (CHESSN), which is assigned to a higher education student if they:

• receive a Commonwealth supported place, which provides subsidised course fees through the Commonwealth Grant Scheme
• defer the cost of their course fees through the Higher Education Loan Program (HELP)
• receive a scholarship through the Commonwealth Scholarship program or
• receive funding for postgraduate research through the Research Training Program.[11]  

The CHESSN is used primarily to monitor the amount of Commonwealth assistance that the student has received through these programs.[12] As such, it does not include an authenticated transcript service, or apply to higher education students who do not receive Australian Government funding.[13] However, it does allow the Department of Education to link students’ records between different higher education providers, for example to analyse higher education completion rates over time.[14]   

The case for extending the USI to higher education

The case for extending the USI to higher education rests on both the limitations of the CHESSN, and the need for better connections between higher education and VET information for students and policy makers.   

Under current arrangements, it is not possible for policy makers and analysts to adequately track student mobility between sectors―this capability is important for the purposes of understanding and addressing issues such as student retention and completion, or the impact of strategic investments in particular skill areas across multiple sectors.[15]

The 2018 Redevelopment and Audit of the Higher Education Data Collection discussion paper (the higher education data collection discussion paper) states:

The capability to identify all higher education students, both domestic and international, would provide an enhanced capacity to analyse students’ study patterns and pathways, and more reliably measure attrition and completion rates.

A single unique identifier applied to all students undertaking higher education with an Australian provider would provide a more comprehensive understanding of students’ higher education experience and facilitate more effective, targeted student support by both government and providers.

The new funding arrangements for research block grants also include a new focus on unique identifiers to follow research students through their studies.

While there are inherent limitations in the current CHESSN allocation system, the Unique Student Identifier (USI) currently being implemented in the VET sector provides a viable model of a more robust identifier that could be allocated to all higher education students. Utilising an existing process would provide a cost effective way to implement a unique identifier across higher education and significantly reduce implementation timeframes.[16]

This view is consistent with higher education stakeholder views. Universities Australia’s submission to the Productivity Commission’s (PC) 2016 inquiry into the national education evidence base strongly supported the introduction of a nationally consistent USI, stating:

A USI that would enable improved tracking of students would allow universities and governments to better evaluate outreach programs—which typically feature long time frames between first engagement and graduation—and provide more targeted interventions across the primary, secondary and tertiary education sectors. More generally, the USI will enable the development of a comprehensive picture of student movement between jurisdictions and between schools, universities and VET providers, all of which will greatly assist policy development and efficient allocation of support funding.[17]

Although the PC’s National Education Evidence Base: Inquiry Report focused on schools and early childhood education, it suggested a USI for tertiary education:

Linking data on students’ school performance and characteristics with subsequent outcomes could yield insights into the long-term effects of particular programs and interventions ... Although post-school outcomes are beyond the scope of this inquiry, this appears to be an area worth considering in the development of a national USI.[18]

More recently, the 2017 Higher Education Standards Panel’s Final Report - Improving Retention, Completion and Success in Higher Education states:

Institutions from the university and private higher education sector, peak bodies, governments and research organisations all agreed a common student identifier would assist provide [sic] a better understanding of how students move between the sectors and would inform public policy formulation and program delivery through evidence based data.[19]

For students, beyond having access to the additional features of the USI service, current arrangements are unlikely to best fit record keeping and access needs as individuals increasingly engage in lifelong learning and ‘mix and match a range of opportunities from both VET and higher education to obtain the right blend of skills, capabilities and knowledge’, thereby building up study records across the different sectors.[20]

However, the Office of the Australian Information Commissioner (OAIC) has cautioned, in its submissions to both the 2016 PC inquiry and the higher education data collection discussion paper, that these potential benefits need to be balanced with privacy risks, as the extension of the USI could lead to inappropriate data linking and use of the data beyond its original purposes.[21] This issue is discussed further in the key issues and provisions section of this Bills Digest.   

Committee consideration

Senate Selection of Bills Committee

At its meeting of 4 December 2019, the Senate Selection of Bills Committee deferred consideration of the Bill to its next meeting.[22]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill.[23]

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

Although the Bill has not drawn specific comment, the extension of the USI to the higher education sector has been widely supported by higher education stakeholders for some time, as discussed in the background of this Bills Digest.

Financial implications

The Explanatory Memorandum to the Bill states:

The expansion of the student identifier to higher education will cost $15.5 million over four years from 2019–20 to 2022–23. This will include $12.7 million over four years to the Department of Employment, Skills, Small and Family Business and the Office of the Student Identifiers Registrar for information technology (IT) system development, IT maintenance and cloud hosting, website development, telephony, and stakeholder engagement. The remaining $2.9 million over three years from 2019–20 to 2021–22 will fund departmental costs including a Privacy Impact Assessment, IT enhancements, and stakeholder engagement.[24]

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.[25]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had not considered the Bill.[26]

Key issues and provisions

Extending the USI to regulated higher education awards

Currently, as outlined in the background to this Bills Digest, the USI applies only to the VET sector. Under section 53 of the Act, a registered training organisation (RTO) must not issue a VET qualification or statement of attainment to an individual, unless they have been assigned a USI. This requirement is subject to certain exemptions as determined by the Minister under subsection 53(3) (current exceptions are set out in the Student Identifiers (Exemptions) Instrument 2018).

Item 21 of the Bill inserts proposed section 53A, with the effect of extending the USI to regulated higher education awards, and inserting exemption provisions in similar terms to those currently in place, and those proposed in the Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019 (the Enhanced Student Permissions Bill), for VET students.[27]

Proposed subsection 53A(1) requires that registered higher education providers must not confer registered higher education awards on individuals who have not been assigned a student identifier.[28]

Under proposed subsection 53A(2), a higher education award can be conferred to a student without a USI, if an exemption is granted by the Education Minister by legislative instrument made under proposed subsection 53A(3). Proposed subsection 53A(3) allows the Education Minister to make exemptions based on:

• the registered higher education provider doing the conferring (that is, a particular provider could receive an exemption)
• the regulated higher education award being conferred (that is, a particular course could receive an exemption) or
• the individual on whom the regulated higher education award is being conferred.  

These provisions are in similar terms to those provisions in section 53 that provide the Commonwealth Minister the power to make exceptions in relation to the issue of VET qualifications.

Under proposed subsection 53A(4), a higher education award can still be conferred to a student without a USI, if an exemption is granted by a determination made by the Registrar. Similar provisions for VET qualifications do not currently appear in the Act, but are proposed in the Enhanced Student Permissions Bill.[29] The arrangements for such a determination are set out in proposed subsections 53A(5) to 53A(12). Under these arrangements, in the higher education sector:

• an individual will be able to request, in a manner and form approved by the Registrar, that the Registrar make a determination that they be exempt from the requirement to have a USI[30]  
• the Registrar will be required to make the determination in writing, or indicate in writing that the request has been refused, and provide the person with notice of the decision (including reasons for the decision if the exemption has been refused)[31]    
• in making the decision as to whether to grant or refuse the requested exemption, the Registrar will be required to consider any matters included in an instrument made by the Education Minister, if the Minister makes such an instrument[32]
• if the Registrar assigns a USI to an individual who has previously been granted an exemption under these arrangements, the assignment of the USI is taken as revocation of that exemption[33] and
• the Education Minister does not need to make two separate legislative instruments setting out arrangements for USI exemptions―the legislative instrument made under proposed subsection 53A(3), setting out any exemptions granted by the Minister, can also include the matters the Registrar must consider in making a determination about an individual’s exemption.[34]

The application provision at item 23 means the USI will be mandatory for the conferral of all non-exempt higher education awards from 1 January 2023, regardless of when the individual started studying. Items 2 and 20 make consequential amendments to the simplified outlines of the Act and of Part 5 of the Act.

Other amendments that extend the USI regime to higher education

Item 4 inserts relevant higher education definitions into the definitions sections at subsection 4(1), by reference to the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act) and the Education Services for Overseas Students Act 2000 (the ESOS Act). These include for example that the Education Minister is the Minister who administers the TEQSA Act (the Act under which the higher education regulator, the Tertiary Education Quality and Standards Agency (TEQSA),[35] operates) and that the Education Department is the Department that is administered by the Education Minister. Currently, references to Commonwealth Minister in the Act refer to the Minister for Employment, Skills, Small and Family Business, who administers the Act.[36] The addition of references to the Education Minister and the Education Department by the Bill reflect the extension of the USI regime to higher education.

Item 10 amends section 12, which deals with the resolution of problems in relation to the assignment of USIs. Proposed paragraph 12(2)(ba) would require the Registrar to notify the Secretary of, or an Australian Public Service (APS) employee in, the Education Department, if they revoke a USI or assign a new USI in the course of resolving a problem with USI assignment. Currently, this requirement applies to informing the individual, VET‑related body, and any other entity the Registrar considers appropriate in the circumstances.[37]

Item 18 adds a reference to the Secretary of the Education Department so that staff from this Department can be made available to assist the Registrar. Item 15 makes a consequential amendment to the simplified outline of Part 4 of the Act.

Item 19 amends section 51 of the Act so that the Registrar is required to give a copy of an annual report to the Education Minister in addition to the Commonwealth Minister. Item 16 makes a consequential amendment to the simplified outline of Part 4 of the Act.

Item 17 inserts proposed section 33A, which would allow the Education Minister to give directions to the Registrar by legislative instrument about the performance of the Registrar’s functions with respect to higher education. The note to proposed subsection 33A(1) clarifies that disallowance and sunsetting do not apply to such directions under the Legislation Act 2003. Currently, section  33 allows the Commonwealth Minister to give written directions to the Registrar about the performance of the Registrar’s functions. The Explanatory Memorandum to the Bill explains that ‘it is expected that the Education Minister will consult the Minister responsible for administering the Act in making any direction.’[38] However, the Bill does not seek to mandate such consultation.

Section 57 of the Act allows the Governor‑General to make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act, provided the Commonwealth Minister has the agreement of the Ministerial Council to the making of the regulations. Item 22 inserts proposed subsection 57(2A) which specifies that, providing the regulations only relate to higher education, and the Education Minister recommends the making of the regulations to the Governor General, the agreement of the Ministerial Council is not required. This is because the Ministerial Council does not have oversight of higher education. Similar to the new power for the Education Minister to give directions discussed above (Item 17), the Explanatory Memorandum notes that ‘it is expected that the Education Minister will consult the Minister responsible for administering the Act in the course of making any recommendation to the Governor-General to make any regulations under the Act.’[39] However, again the Bill does not mandate such consultation.

USI application, provision and verification

USI applications

Item 6 amends section 9, which deals with USI applications, to allow registered higher education providers and Tertiary Admissions Centres to apply to the Registrar for a USI to be assigned to an individual (if authorised by that individual to do so). This would allow USIs to be issued as part of the higher education applications or enrolment process. Currently, other than the individual, only an RTO, VET admission body, or another entity can make such an application.[40] 

Items 7, 8 and 9 make consequential amendments to section 11 of the Act to ensure that these new entities that can apply for a USI are captured by the existing requirement to destroy personal information for the purposes of making an application.

Requests for provision or verification of USIs

Item 11 amends subsection 14(1), which lists the entities able to request the Registrar provide or verify an individual’s USI, to allow USIs to be used in higher education application and enrolment processes. Currently, subsection 14(1) allows the individual, an RTO, VET-related body, or VET admission body authorised by the individual to make a request to the Registrar to verify or provide a USI. Under the proposed changes, the following higher education related bodies would be added:

• a registered higher education provider
• a Tertiary Admission Centre authorised by the individual to make a request under this section
• the Secretary or an APS employee of the Education Department
• a person who performs services for or on behalf of the Commonwealth in connection with the performance of functions, or the exercise of powers, under the Higher Education Support Act 2003 (HESA) or any instrument made under that Act
• a TEQSA Commissioner, the Chief Executive Officer of TEQSA, or a member of the staff of TEQSA
• a person who performs services for or on behalf of the Commonwealth in connection with the performance of functions, or the exercise of powers, under the TEQSA Act or any instrument made under that Act
• the Tuition Protection Service (TPS) Director or a TPS officer and
• an Education Services for Overseas Students (ESOS) agency for a provider or registered provider, or an authorised officer of the ESOS agency for a registered provider.[41]

Items 3 and 5 make consequential amendments to the simplified outlines of the Act and of Part 2 of the Act.

Information collection, use and disclosure

Current requirements with respect to collection, use and disclosure

The collection, use or disclosure of USIs is dealt with in Division 5 of Part 2 of the Act. Under section 17, unless a USI belongs to the individual concerned, any collection, use or disclosure that is not authorised by the Division constitutes interference with the privacy of the individual for the purposes of the Privacy Act 1988. The following is authorised by the relevant Division:

• collection, use or disclosure of USIs by the Registrar for the purposes of performing their functions or exercising their powers[42]
• use or disclosure of USIs by the Registrar for the purposes of research that relates (directly or indirectly) to education or training, or that requires the use of the USI or information about education or training, providing the research meets the requirements of the Ministerial Council (currently the Council of Australian Governments Skills Council)[43]
• collection, use or disclosure by a VET-related body or the Commissioner of Taxation if reasonably necessary for performing functions or exercising powers to administer VET Student Loans under the VET Student Loans Act 2016[44]
• collection, use or disclosure by an entity with the individuals consent[45]
• collection, use or disclosure by an entity in relation to unlawful activity or misconduct of a serious nature[46]
• collection, use or disclosure by an entity for law enforcement purposes[47] and
• collection, use or disclosure by an entity as authorised by the regulations.[48]

Given the same USI that is currently used in the VET sector will be used in the higher education sector under the Bill’s proposal, these same collection, use and disclosure requirements will still apply under the extended USI regime.

Release of information by the Registrar for research purposes

Item 12 amends section 18 to add higher education research provisions in similar terms to the current VET research provisions. Proposed subsection 18(3) would allow the Registrar to use or disclose a USI for the purposes of research that relates (directly or indirectly) to higher education, providing it meets the requirements set out in a legislative instrument made by the Education Minister under proposed subsection 18(4).

Item 14 makes a similar amendment to section 25, which deals with use or disclosure of personal information authorised for the purposes of the Privacy Act. Proposed subsection 25(3) specifies that the use or disclosure of personal information by the Registrar for the purposes of research is authorised by the Act if it relates (directly or indirectly) to the provision of higher education, and meets the requirements set by the Education Minister in a legislative instrument under proposed subsection 25(4). 

While the Explanatory Memorandum notes that the legislative instruments made under proposed subsections 18(4) and 25(4) ‘will provide appropriate safeguards and parameters around the Registrar’s use and disclosure of student identifiers’, the actual privacy protections that will be in place are unclear as there is as yet no indication as to the content of any future instrument made. The Explanatory Memorandum to the Bill indicates that a Privacy Impact Assessment (PIA) is being conducted in relation to this proposal. [49] At the time of writing this Digest, the Department of Education’s register indicates this has not yet been completed.[50] According to the OAIC, a PIA ‘should be undertaken early enough in the development of a project that it is still possible to influence the project design or, if there are significant negative privacy impacts, reconsider proceeding with the project.’[51]

Collection, use or disclosure of USIs

Item 13 addresses the collection, use or disclosure of the USI for purposes in other key higher education Acts: HESA, the TEQSA Act, and the ESOS Act.

Proposed section 18B deals with higher education:

• for the purposes of performing functions or exercising powers under HESA, or an instrument made under HESA, powers to collect, use, or disclose the USI are extended to:
  • the Secretary of the Education Department
  • an APS employee of the Education Department
  • a person who performs services for or on behalf of the Commonwealth in connection with the performance of functions, or the exercise of powers, under HESA or any instrument made under HESA
  • the Commissioner of Taxation[52]
• for the purposes of performing functions or exercising powers under the TEQSA Act, or an instrument made under the TEQSA Act, Powers to collect, use, or disclose the USI for these purposes are extended to:
  • a TEQSA Commissioner
  • the Chief Executive Officer of TEQSA
  • a member of the staff of TEQSA
  • a person who performs services for or on behalf of the Commonwealth in connection with the performance of functions, or the exercise of powers, under the TEQSA Act or any instrument made under the TEQSA Act[53]
• a registered higher education provider is also authorised to collect, use or disclose a USI if reasonably necessary in connection with the operation of HESA or the TEQSA Act, or an instrument under either of those Acts.[54]

Proposed section 18C deals with education services for overseas students:

• for the purposes of performing functions or exercising powers under the ESOS Act, or an instrument made under the ESOS Act, powers to collect, use, or disclose the USI are extended to:
  • the Secretary of the Department administered by the Minister administering the ESOS Act
  • the TPS Director
  • a TPS officer
  • an ESOS agency for a provider or registered provider
  • an authorised officer of the ESOS agency for a registered provider[55]
• a registered higher education provider is also authorised to collect, use or disclose a USI if reasonably necessary in connection with the operation of the ESOS Act or an instrument under the ESOS Act.[56]

The definitions inserted by Item 4 of the Bill by reference to the TEQSA Act and the ESOS Act correspond with certain persons listed in proposed sections 18B and 18C .

In some respects these changes go beyond simply adding higher education provisions into the Act in line with those already in place for VET related entities, since the VET related provisions are confined to research, VET Student Loans, and the Registrar’s functions. By including functions and powers under HESA, the TEQSA Act, and the ESOS Act, the Bill captures not only the Higher Education Loan Program (equivalent to the VET Student Loans) and other Australian Government higher education funding under HESA, but quality assurance functions by TEQSA, and international education funding and assurance functions in VET and higher education. 

Of relevance here are the following comments from the OAIC, which stated in its submission to the higher education data collection discussion paper that:

... for the full value of a new identifier to be realised, the scheme should be introduced in a transparent manner and with a robust legislative framework. Strong legislative safeguards can protect the identifiers from being used for purposes beyond those originally intended, preventing the possibility of ‘function creep’.[57]