Thursday, 23 June 2022
Bills
Education Legislation Amendment (Adult and Community Education and Other Matters) Bill 2022
Education Legislation Amendment (Adult and Community Education and Other Matters) Bill 2022
Introduction and first reading
The PRESIDENT (17:24): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Child Wellbeing and Safety Act 2005, the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021, the Education and Training Reform Act 2006, the Public Administration Act 2004, the Sex Offenders Registration Act 2004 and the Worker Screening Act 2020 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Mr LEANE: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (17:25): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this statement of compatibility with respect to the Education Legislation Amendment (Adult and Community Education and Other Matters) Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill amends a variety of Acts. It introduces, most relevantly, reforms to the Education and Training Reform Act 2006 (ETRA) designed to strengthen the ability of the Victorian Registration and Qualifications Authority (VRQA) to act as an integrated sector regulator, and to modernise the framework for the access, use and disclosure of the Victorian student number (VSN) and related information on the Student Register.
Human rights issues
Power of Secretary to authorise access to, use and disclosure of VSNs or related information
Clause 49 of the Bill replaces section 5.3A.9 of the ETRA. Section 5.3A.9 sets out the powers of the Secretary to authorise access to, use and disclosure of VSNs and related information. ‘Related information’ is defined in section 5.3A.1 of the ETRA, and includes a student’s full name, date of birth, gender, and their date of enrolment by an education or training provider, or registration for home schooling (and date of cancellation, where applicable) (ss 5.3A.4(1) and 5.3A.7).
The Charter rights to privacy and protection of children, summarised below, are relevant to this clause.
Section 13 of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise, accessible and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This right recognises the special vulnerability of children. The scope of the right is informed by article 3 of the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children, the best interests of the child shall be a primary consideration.
By expanding the Secretary’s power of authorisation and repealing the requirement to publish notice of an authorisation in the Government Gazette, clause 49 engages, but does not limit, the above Charter rights, for the reasons set out below.
Expansion of Secretary’s power to authorise persons to access, use or disclose VSNs or related information
Existing subsection 5.3A.9(1) of the ETRA exhaustively lists the persons and bodies that the Secretary may authorise to access, use or disclose VSNs and related information. Clause 49 of the Bill removes these limits, allowing the Secretary to authorise any person, body or class of persons or bodies to access, use or disclose VSNs or related information. In addition, new section 5.3A.9(2) adds four purposes for which the Secretary may authorise persons to access, use or disclose VSNs or related information: i) to ensure students’ educational records are accurately maintained; ii) as required or authorised by or under law; iii) for a purpose prescribed in regulations; and iv) for a purpose specified in a Ministerial Order. Last, new section 5.3A.9 does not retain a prohibition on the Secretary authorising the disclosure of personal information relating to an individual student (previously in subsection (5)).
Expanding the Secretary’s power to authorise access, use and disclosure of VSNs or related information reflects a greater interference with the right to privacy of students, as the VSNs and related information include personal information of individual students. That information must be provided to the Secretary in order for a student to be allocated a VSN and, therefore, to access education in Victoria (ss 5.3A.4, 5.3A.7 of the ETRA). The interference with privacy is amplified by the fact that, in many cases, the personal information of children (who are entitled to special protection under section 17(2) of the Charter) may be made more widely available.
An interference with privacy authorised under new subsections 5.3A.9(1)–(2) is, in my opinion, lawful, as the criteria under new section 5.3A.9 are accessible and precisely formulated. Whether an interference is arbitrary will depend on whether, in all the circumstances, it extends beyond what is reasonably necessary to achieve the statutory purposes.
Clause 49 of the Bill serves four principal purposes. First, to permit persons who require access to VSNs or related information to perform their roles to access the information expeditiously and without unnecessary restriction. This may include, for example, IT contractors whom the Department of Education and Training have engaged to develop and maintain departmental IT systems. Although this is a permitted purpose under existing subsection (2), these persons are not presently listed under subsection (1), such that they cannot be authorised to access, use or disclose VSNs or related information.
Second, to allow access to student information (e.g., regarding enrolment and attendance) by children’s lawyers, the Youth Justice Division of the Children’s Court, and the Department of Justice and Community Safety in order to support a child’s re-engagement with the education system during, or after, court proceedings (e.g., in the context of sentencing and bail applications). Currently, a court order may be required for these persons or entities to access information relating to a child’s education history.
Third, to permit inter-departmental committees to access student information when considering young people who have been identified as being at a high risk of offending, where this poses a serious threat to public safety, health or welfare.
Fourth, to permit IT contractors to draw on VSNs or related information to ensure the quality of education-related data on other systems (e.g., to verify a student’s identity), and to facilitate cloud-based systems managed by third-party providers.
Importantly, a number of privacy safeguards are included in the ETRA and in the Bill. First, new section 5.3A.14 (inserted by clause 53 of the Bill) provides that the Secretary must not use or disclose a VSN or related information to any person or body, except: to an authorised user in accordance with an authorisation, as required or authorised by of under law, or in the exercise of any other function, power or duty under Part 5.34 of the ETRA. In granting an authorisation under section 5.3A.9, the Secretary is a public authority who is subject to the obligation in section 38 of the Charter to give proper consideration to, and to act compatibly with, human rights. This reduces the risk of any particular interference with privacy being arbitrary. New section 5.3A.9A(a) (inserted by clause 50) provides that the Secretary must also have regard to any guidelines made under new section 5.3A.10A(2)(a) (inserted by clause 51) before giving an authorisation.
Second, clause 52 of the Bill inserts new sections 5.3A.10A, 5.3A.10B, and 5.3A.10C into the ETRA. New section 5.3A.10A(1) requires the Secretary to make guidelines, including with respect to: the manner in which an authorised user may access, use and disclose VSNs or related information for a purpose specified in new section 5.3A.9(2); the storage and destruction of VSNs and related information; any prescribed matter; or any matter specified in a Ministerial Order. New section 5.3A.10A(2) provides, in addition, that the Secretary maymake guidelines with respect to other matters, including with respect to notification of the making of an authorisation and reporting requirements for authorised users. Guidelines must be published on an appropriate internet site as soon as possible after they are issued (new section 5.3A.10A(4)). New section 5.3A.10B provides that an authorised user must comply with any guidelines issued by the Secretary.
Third, with respect to the new purposes in subsections 5.3A.9(2)(g)–(h) for which an authorisation may be granted, regulations and Ministerial Orders are legislative instruments and must undergo a Charter assessment (including for compatibility with privacy rights) before they are adopted.
Fourth, section 5.3A.10(1) of the ETRA (as replaced by clause 51 of the Bill) states that an authorised user must only access VSNs or related information in accordance with Division 3 of Part 5.3A of the ETRA and the Privacy and Data Protection Act 2014 (PDP Act). In addition, new section 5.3A.10C (inserted by clause 52) provides that the PDP Act applies to the handling of personal information or unique identifiers by an authorised user (who is not an organisation under the PDP Act or subject to the Commonwealth Privacy Act 1988) as if the user were an organisation within the meaning of the PDP Act.
In my opinion, the expansion of authorised persons to ‘any’ person, combined with the expansion of the purposes for which authorisation may be given and the repeal of the prohibition on disclosing individual student personal information, are reasonably necessary to achieve the legislative objectives. The safeguards described above ensure that any interference with privacy is confined to what is necessary to achieve the legislative objectives. I do not consider that any less-restrictive means (e.g., specifying additional authorised users in subsection 5.3A.9(1)) would achieve the objectives. On balance, in my opinion, clause 49 does not authorise an arbitrary interference with privacy.
Repeal of gazetting requirement
Clause 49 implicitly repeals section 5.3A.9(3), which means that the Secretary is no longer required to publish notice of an authorisation to access, use or disclose VSNs or related information in the Government Gazette. This is relevant to the lawfulness aspect of the right to privacy, which requires any restriction on a person’s privacy to be authorised by a positive law that is sufficiently precise and accessible to allow persons to regulate their conduct.
As described above, new section 5.3A.10A(2) provides that the Secretary may issue binding guidelines prescribing notification requirements in respect of an authorisation. The guidelines must be published on an appropriate Internet site as soon as possible after they are issued.
Moreover, in exercising the power to authorise persons to access, use and disclose VPNs or related information, the Secretary will be required to give proper consideration to, and to act compatibly with, human rights (s 38 of the Charter). To the extent that any contemplated authorisation under new section 5.3A.9(1) might interfere with the privacy of persons to whom the information relates, the Secretary must give proper consideration to the privacy rights of those persons under section 13(a) of the Charter. That exercise will include consideration of whether the proposed authorisation is ‘lawful’, in the sense that it is accessibleand precise.
In addition, Information Privacy Principle 1.5 in Schedule 1 of the PDP Act requires an organisation (e.g., an authorised user) which collects personal information about an individual from someone else (e.g., the Secretary) to take reasonable steps to ensure that the individual is or has been made aware of the matters listed in Information Privacy Principle 1.3, which includes information about to whom the organisation usually discloses information of that kind.
These protections ensure that any authorisation which interferes with privacy will be accessible. Therefore, I am satisfied that any interference with a person’s privacy as a result of an authorisation will be lawful.
VRQA’s power to issue notices to produce
Clause 62 of the Bill amends subsection 5.8.10(1) of the ETRA, as inserted by section 76 of the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021. Relevantly, the clause replaces the word ‘necessary’ with ‘relevant’, such that the power of the VRQA to issue a notice to produce is enlivened where it reasonably believes that a document or information is relevant for one of the purposes listed in subsection 5.8.10(1). The objective of the amendment is to support the ability of the VRQA to regulate the Child Safe Standards as an integrated sector regulator.
This amendment engages the right to privacy in section 13(a) of the Charter because a notice to produce may require production of private documents of persons who have no association with a school or relevant entity, on the basis of the lower threshold of ‘relevance’. In my opinion, however, any interference with privacy is lawful and non-arbitrary, such that there is no limit on the Charter right.
In particular, even though clause 62 enacts a less stringent threshold in subsection 5.8.10(1) of the ETRA, the VRQA may nevertheless only issue a written notice under subsections 5.8.10(2)(a)–(d) where the relevant document or information is ‘required’ for the prescribed purpose. This constrains the scope of the power to what is ‘required’ to achieve specific legislative purposes.
In addition, as a public authority, the VRQA is subject to the requirement in section 38 of the Charter to give proper consideration to, and to act compatibly with, human rights when exercising its power to issue a notice to produce. This operates as a further constraint upon any interference with privacy.
The Hon. Gayle Tierney MP
Minister for Training and Skills
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Mr LEANE: I move:
That the bill be now read a second time.
Incorporated speech as follows:
I am pleased to be introducing the Education Legislation Amendment (Adult and Community Education and Other Matters) Bill 2022. The Bill proposes various amendments to the Education and Training Reform Act 2006 (Education Act), to the Child Wellbeing and Safety Act 2005 (CWS Act) and to the Child Wellbeing and Safety Amendment (Child Safe Standards Compliance and Enforcement) Amendment Act 2021 (CWS Amendment Act).
The Bill will amend the Education Act to:
• clarify and modernise the powers, functions and governance arrangements of the Adult, Community and Further Education Board (ACFE Board);
• remove adult education institutions as a category of providers of adult, community and further education (ACFE) and confine the provisions relating to adult education institutions to AMES Australia;
• modernise the framework for access, use and disclosure of the Victorian Student Number (VSN) and related information on the Victorian Student Register (VSR);
• provide the Victorian Registration and Qualifications Authority (VRQA) with greater discretion on whether to conduct a compliance audit of a registered training organisation (RTO);
• clarify in line with the original policy intent that post-secondary education institutions and post-secondary education providers may provide education to people who are of compulsory school age, including to ensure those entities are subject to the Child Safe Standards (CSS) under CWS Act;
• allow the Minister for Education to appoint an acting member of the Board of the Victorian Academy of Teaching and Leadership.
The Bill will also amend the CWS Act as amended by the CWS Amendment Act to:
• ensure that a person, body or school registered in respect of a foundation secondary course or foundation secondary qualification is subject to the reportable conduct scheme and the CSS;
• allow the VRQA to continue to use and disclose information about complaints in accordance with existing provisions in the Education Act and Privacy and Data Protection Act 2014 (PDP Act).
Finally, the Bill will amend the Education Act as amended by the CWS Amendment Act to:
• lower the threshold for the VRQA to issue a notice to produce;
• allow the VRQA to issue notices to comply to schools, school boarding premises and RTOs.
ACFE Board
The Bill will implement recommendations of the Review of Governance of ACFE in Victoria (ACFE Governance Review) by removing barriers to effective governance to help the ACFE Board meet its goals and aspirations in the Ministerial Statement on the Future of Adult Community Education in Victoria 2020–25 (Ministerial Statement). These amendments will support the objectives of improving access to, and quality of, post-secondary education and training for Victorian learners.
The Bill will substitute outdated, repetitive functions of the ACFE Board to address recommendation 4 of the ACFE Governance Review, including to reflect the current remit of the ACFE Board under the Ministerial Statement. The Bill will also repeal a redundant provision requiring the Board to have regard to advice of Regional Councils and substitute the requirement for the ACFE Board to have 12 members with a requirement to have between 8 and 12 members. This is consistent with the approach to membership requirements for other authorities in the Education Act.
The Bill will also modernise other provisions relating to the ACFE Board, including by requiring the ACFE Board to have sufficient “governance” expertise, rather than “management” expertise. The Bill will provide that the General Manager of the ACFE Board is to be employed under the Public Administration Act 2004, rather than under the Education Act, and will specify that Regional Councils consist of between 5 and 9 members.
AMES Australia
The Bill also implements recommendations of the Review of AMES Australia to better enable AMES Australia to fulfil its functions relating to settlement services, employment services and vocational education and training for multicultural communities. The amendments will ensure AMES Australia remains a sustainable organisation that is well positioned to continue to deliver public value and meet the needs of Victoria’s multicultural communities for settlement services, vocational education and training and related services.
The Bill will tailor provisions relating to adult education institutions specifically to AMES Australia. The Bill will also better align the governing provisions in the Education Act for AMES Australia with the provisions for TAFE institutes, which:
• recognise the commercial nature of the services AMES Australia provides;
• provide for the CEO to be a member of the Board of AMES Australia; and
• reflect that there is no longer a direct relationship between the ACFE Board and AMES Australia.
The Bill will better target the objectives and functions of AMES Australia, including by specifically referring to services for migrants, refugees and asylum seekers. The Bill will also specify circumstances in which AMES Australia may engage in activity on a commercial basis and that AMES Australia has the powers conferred under the Borrowing and Investment Powers Act 1987. The Bill will require that the Minister and members of the Board of AMES Australia must endeavour to ensure that members include persons with knowledge of, or experience in, the education needs of, and services required by, migrants, refugees and asylum seekers in the Victorian community.
VSN
The VSN was introduced in 2008 as a unique identifier assigned to all Victorian students. VSNs are held in the Victorian Student Register (VSR), which is maintained by the Victoria Curriculum and Assessment Authority (VCAA) under delegated authority from the Secretary to the Department. The VSR records limited information about students under 25 years of age who are enrolled with an education or training provider or registered for home schooling. The information collected in the VSR includes a student’s VSN, full name, date of birth, gender, date of enrolment and date of cancellation of enrolment from an education or training provider.
Under Part 5.3A of the Education Act, only certain bodies and persons, including Department employees (excluding contract workers), registered school and training providers, the VRQA, and the VCAA, are permitted to access, use or disclose VSNs and related information recorded in the VSR. Further, an authorisation to access, use or disclose VSNs and related information must be for one of the prescribed purposes, which include:
• monitoring and ensuring student enrolment and attendance;
• ensuring education or training providers and students receive appropriate resources;
• statistical purposes relating to education or training;
• research purposes relating to education or training; and ensuring student’s education records are accurately maintained.
Since the introduction of the VSN over a decade ago, the list of authorised users and permitted purposes has not kept pace with operational and technological change within and beyond the Department. The current regime for accessing, using and disclosing VSNs and related information has not been able to accommodate new requirements for user groups and use cases as they emerge.
Consequently, the Department and associated education and training providers have increasingly been unable to carry out critical functions using the VSN, which is still considered the most effective mechanism to ensure quality of student data, as a proof of identity tool.
Due to the narrow list of authorised users and permitted purposes to access, use and disclose VSNs and related information, the legislative environment governing the use of the VSN is out of step with how information is managed and exchanged in contemporary society. Requirements for access to the VSN under the current legislation are highly restrictive and limit authorised users from using the VSN as intended to:
• improve capability to verify student identity and monitor student journeys through the education and training system
• identify areas for improvement in Victoria’s education and training system
• analyse trends and anticipate the needs of students.
These constraints inhibit helping students who stand to benefit most from a unique identifier that improves the collection and analysis of timely and accurate data about education in Victoria.
As the body with governance responsibility for the VSR, the VCAA routinely receives requests for VSNs and related information from law enforcement bodies to support investigations or justice proceedings. While some information sharing schemes (like the Child Information Sharing Scheme and the Family Violence Information Sharing Scheme) override the Education Act to enable the sharing of VSNs and related information with Victoria Police where the threshold for sharing under those schemes is met, these schemes do not cover disclosing VSNs and related information with federal police (who routinely request access to VSN information) or disclosing information to law enforcement if the subject in question is no longer a child. Similarly, under Part 5.3A, the VCAA (and any authorised user) is unable to disclose VSNs and related information to any law enforcement body in instances where a request is not required or authorised by or under law.
To address these constraints the Bill will provide greater flexibility for persons and entities who may be authorised to access, use and disclose VSNs and related information in the VSR and expands the purposes for which VSNs and related information can be accessed, used and disclosed. These amendments will facilitate more accurate reporting to the community on the state’s education and training system.
The Bill will ensure that VSNs and related information will be regulated in accordance with the Information Privacy Principles in the PDP Act and any guidelines issued by the Secretary to ensure that VSNs can be used as intended for their primary purposes. Those purposes include monitoring student enrolment details, verifying student identity and providing data for strategic insights into the movements of students, including identifying students at risk of disengaging from education or training.
VRQA compliance audits
The Bill will seek to align the VRQA’s approach to conducting compliance audits of RTOs under the Education Act with the approach of the national VET regulator: the Australian Skills Quality Authority (ASQA). ASQA has discretion to decide whether to conduct a compliance audit when considering an application for registration or re-registration of an RTO. The Bill will give the VRQA greater flexibility to consider whether an audit is necessary as part of an application for registration or re-registration of an RTO. This will reduce regulatory burden on RTOs and allow the VRQA to focus on RTOs posing a greater risk when determining when to conduct an audit.
VRQA as integrated sector regulator of the Child Safe Standards and other consequential amendments
From 1 January 2023, the CWS Act will be amended by the CWS Amendment Act to make the VRQA the integrated sector regulator of the Child Safe Standards. The CWS Amendment Act implemented a number of recommendations of the 2019 Review of the Victorian Child Safe Standards, including making the VRQA the sole regulator of the child safe standards in relation to the entities that the VRQA already regulates, including schools, school boarding premises and RTOs.
The Bill amends the CWS Amendment Act, and the CWS Act and the Education Act as amended by the CWS Amendment Act, to ensure that the VRQA’s regulatory powers and functions are adequate to perform this expanded role including by:
• allowing the VRQA to continue to use and disclose information about complaints in accordance with existing provisions in the Education Act and PDP Act, which would otherwise be limited by the proposed new information sharing provisions proposed to be inserted into the CWS Act by the CWS Amendment Act;
• lowering the threshold for the VRQA to issue a notice to produce to be consistent with the existing thresholds for other similar information gathering powers available to the VRQA;
• allowing the VRQA to issue notices to comply to schools, school boarding premises and RTOs, in addition to the other entities that are subject to the Child Safe Standards which the VRQA regulates, to ensure a consistent suite of regulatory tools available to the VRQA in the regulation of the Child Safe Standards; and
• clarifying in line with the original policy intent that post-secondary education institutions and post-secondary education providers may provide education to people who are of compulsory school age, including to ensure those entities are subject to the Child Safe Standards (CSS) under CWS Act;
The Bill also makes other consequential amendments:
• to the CWS Act to ensure that a person, body or school registered with respect to a foundation secondary course or a foundation secondary qualification is subject to the reportable conduct scheme and the Child Safe Standards; and
• to Schedule 2 to the Education Act to allow the Minister for Education to appoint an acting member of the Board of the Victorian Academy of Teaching and Leadership, which was established by the Education and Training Reform Amendment (Victorian Academy of Teaching and Leadership) Act 2021 on 1 January 2022, in line with the other statutory authorities set out under Schedule 2 to the Education Act.
In summary, the amendments in this Bill are mainly technical in nature and seek to make important improvements to a number of components of the Government education and training system established under the Education Act.
For these reasons, I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:25): I move, on behalf of my colleague Dr Bach:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.