Amendment No. 3 to the Other Grants Guidelines (Education) 2012

Administered by Department of Education

Legislation au F2014L01633 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Guidelines issued under section 238-10 of the Higher Education Support Act 2003

 

Amendment No. 3 to the Other Grants Guidelines (Education) 2012

 

Issued by the authority of the Minister for Higher Education

 

Subject  Higher Education Support Act 2003

   Amendment No. 3 to the Other Grants Guidelines (Education) 2012

Authority

Section 238-10 of the Higher Education Support Act 2003 (the Act) provides that the Minister may make guidelines providing for matters required or permitted by the Act necessary or convenient to be provided in order to carry out or give effect to the Act. In particular item 8 of section 238-10 specifies the Minister may make Other Grants Guidelines to give effect to matters under Part 2-3 of the Act. Subsection 33(3) of the Acts Interpretation Act 1901 provides the power to vary the instrument.

Section 41-15 of the Act provides that the Other Grants Guidelines may specify one or more programmes under which grants for particular purposes specified in the table in subsection 41‑10(1) are to be paid.

Purpose and Operation

This legislative instrument amends the Other Grants Guidelines (Education) 2012 which was registered on 13 February 2012 and commenced in 14 February 2012 (see F2012L00281).

Commencement

This legislative instrument will come into effect on the day it is registered on the Federal Register of Legislative Instruments.

Consultation

Consultation on the amendments was not considered necessary as the purpose of the amendments is to allow universities in New South Wales to receive grants under the Higher Education Superannuation Programme. Further amendments involve clarifying the scope of the programme and setting out the reporting and reconciliation processes necessary for programme administration.

Regulation Impact Statement

The Office of Best Practice Regulation was consulted in the preparation of the Other Grants Guidelines (Education) 2012 and assessed that a Regulation Impact statement was not required (ref 16827).

Explanation of provisions

Item 1 repeals and substitutes Chapter 4 of the Other Grants Guidelines (Education) 2012.

 

New Chapter 4 contains provisions as follows:

Paragraph 4.1 sets out the purpose of the Higher Education Superannuation Programme (HESP)

 

Paragraph 4.2 sets out the programme objectives. In particular, this paragraph substitutes reference to Table A providers with reference to higher education providers.

Subparagraph 4.2.2 provides that a grant under this programme is only payable to former employees of an eligible provider.

Paragraph 4.3 prescribes the Higher Education Providers who are eligible to receive grants, as well as the eligible superannuation schemes or funds.

Paragraph 4.4 substitutes previous paragraph 4.4 ‘allocation of grants’. It prescribes the matters which grants made under this programme may cover. In addition, this paragraph omits reference to the Minister approving Administrative Information for Providers as the Administrative Information for Providers is unrelated to HESP.

Paragraph 4.5 prescribes the liabilities and expenses that are not covered under the programme. 

Paragraphs 4.6 provides that grants made under this programme are to be approved by the Minister.

Paragraphs 4.7 provides that grant amounts paid under this programme will be determined by the Minister.

Paragraph 4.8 provides that the conditions applicable to grants made under this programme will be determined by the Minister in accordance with Section 41-25 of the Act.

Paragraph 4.9 specifies the reconciliation process conducted for the programme as well as the supporting documentation required for this process.

 


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Higher Education Support Act 2003

 

OTHER GRANTS GUIDELINES (EDUCATION) 2012

 

Amendments to Guidelines made pursuant to section 238-10 of the

Higher Education Support Act 2003

 

This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Instrument is made by the Minister under Section 238-10 of the Higher Education Support Act 2003 (the Act).  In particular item 8 of section 238-10 specifies that the Minister may make Other Grants Guidelines to give effect to matters under Part 2-3 of the Act.

The purpose of this legislative instrument is to amend the Other Grants Guidelines (Education) 2012 to enable funds to be provided to eligible New South Wales universities to assist with the cost of their superannuation liabilities under the Higher Education Superannuation Programme (HESP).

The 2014 -15 Budget includes provision for the resumption of the HESP to eligible universities, subject to agreement with the NSW Government.

The Department of Education is responsible for managing the supplementation of superannuation liabilities relating to former university employees who are members of State-based superannuation schemes. 

The department provides supplementary financial assistance to universities through the HESP to meet annual expenses in respect of unfunded superannuation liabilities. A portion of the funding is recovered from participating States (Victoria, Western Australia, South Australia and Tasmania) under cost sharing arrangements.

Human rights implications

Right to just and favourable working conditions.

This Legislative Instrument engages the right to just and favourable conditions of work contained in article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  

To the extent that the right to just and favourable conditions of work is engaged, this right is protected and promoted by the Instrument as the Instrument provides the basis for ongoing financial assistance to eligible universities to enable them to discharge their liability for their employees’ superannuation, thereby ensuring employees continue to receive just and favourable conditions of work.

This instrument is compatible with the right to just and favourable conditions of work.

Conclusion

This Legislative Instrument is compatible with human rights because it advances the protection of human rights.

 

Christopher Pyne, 

Minister for Education

Overview

The Higher Education Support Act 2003, enacted by the Australian Parliament, was introduced to provide a comprehensive framework for the support of higher education in Australia, including funding and other support mechanisms for higher education providers and students. The Act empowers the Minister for Education to issue guidelines, such as the Other Grants Guidelines (Education) 2012, which were subsequently amended in 2014 to enhance the administration and scope of the Higher Education Superannuation Programme (HESP). This amendment aimed to facilitate the provision of financial assistance to eligible New South Wales universities to manage their superannuation liabilities for former employees, ensuring that these institutions could continue to meet their obligations under state-based superannuation schemes. The policy objective behind these amendments was to support the financial stability of higher education providers, thereby promoting the right to just and favourable working conditions for university employees as recognised in international human rights instruments. The amendments to the Other Grants Guidelines (Education) 2012, made under Section 238-10 of the Higher Education Support Act 2003, clarify the scope of the HESP and establish processes for grant reconciliation and reporting. This legislative instrument was deemed compatible with human rights, particularly the right to just and favourable conditions of work, as it ensures that universities receive the necessary financial support to discharge their superannuation liabilities, thereby protecting the employment rights of their former staff. The Office of Best Practice Regulation confirmed that a Regulation Impact Statement was not required for these amendments.

Scope and Application

The legislative instrument in question is an amendment to the Other Grants Guidelines (Education) 2012, issued under section 238-10 of the Higher Education Support Act 2003. This amendment is designed to allow universities in New South Wales to receive grants under the Higher Education Superannuation Programme (HESP). The legislation applies to higher education providers, specifically those that are eligible to receive grants under the HESP. The purpose of the amendment is to clarify the scope of the programme, set out the reporting and reconciliation processes necessary for programme administration, and provide financial assistance to eligible universities to meet their superannuation liabilities. The amendment comes into effect on the day it is registered on the Federal Register of Legislative Instruments. This legislative instrument is compatible with human rights as it engages the right to just and favourable conditions of work by providing the basis for ongoing financial assistance to eligible universities to enable them to discharge their liability for their employees’ superannuation.

Key Provisions

The main operative sections of the Higher Education Support Act 2003 Amendment No. 3 to the Other Grants Guidelines (Education) 2012 (the "Amendment") are section 41-15 and the newly added Chapter 4. Section 41-15 allows the Other Grants Guidelines to specify one or more programs under which grants for particular purposes are to be paid. This section underpins the Amendment's authority to establish the Higher Education Superannuation Programme (HESP). Chapter 4, newly introduced by the Amendment, details the purpose, objectives, eligibility criteria, and administration of HESP. Paragraph 4.1 outlines the purpose of HESP, which is to provide financial assistance to eligible universities in New South Wales to meet the cost of their superannuation liabilities for former employees. Paragraph 4.2 delineates the objectives of HESP, specifying that it aims to ensure former employees receive just and favourable conditions of work by assisting universities in meeting their superannuation obligations. Paragraph 4.3 specifies the eligibility criteria for higher education providers and superannuation schemes, ensuring that only certain institutions and funds qualify for the grants. Paragraph 4.4 prescribes the matters that grants under HESP may cover, while Paragraph 4.5 outlines the liabilities and expenses not covered by the program. Paragraphs 4.6 to 4.9 detail the administrative processes, including the approval, determination of amounts, conditions, and reconciliation of grants by the Minister. The Amendment imposes several obligations and requirements on the parties involved. Firstly, eligible higher education providers must meet the criteria set out in Paragraph 4.3 to qualify for grants under HESP. These institutions must be higher education providers and must have eligible superannuation schemes or funds. Secondly, the grants must be approved by the Minister, as stipulated in Paragraph 4.6. The Minister is also responsible for determining the amounts of the grants under Paragraph 4.7 and setting the conditions applicable to these grants in accordance with Section 41-25 of the Act as mentioned in Paragraph 4.8. Additionally, Paragraph 4.9 requires that the program's reconciliation process be conducted, and specific supporting documentation be provided. This ensures transparency and accountability in the administration of the grants. The Amendment does not explicitly state any offences, penalties, or civil/criminal consequences for breaches of the guidelines. However, failure to comply with the conditions set out by the Minister for the grants or non-compliance with the specified reporting and reconciliation processes could potentially lead to the withholding of future grants or other administrative actions. While the Amendment does not detail specific penalties, the overarching Higher Education Support Act 2003 may impose penalties for non-compliance with its provisions. Given the context of financial assistance and the need for accurate reporting, non-compliance could result in the university being ineligible for future grants or other administrative sanctions as determined by the Minister.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.