Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016

Administered by Department of Education

Legislation au F2017L00030 In force Legislative Instrument

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Explanatory Statement

Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016

Summary

The Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016 (Determination) is made by the Minister for Education and Training under subsections 65(3) and (7) of the Australian Education Act 2013 (Act).

The purpose of the Determination is to define the total amount of 2015 recurrent school funding entitlement for non-participating schools for the purposes of the Act, and to define the split of that amount between the non-participating States and Territories.

Background

The Act provides for (amongst other things) Commonwealth recurrent funding for “participating schools” and “non-participating schools”. Participating schools are all non-government schools, and government schools of “participating States and Territories”; non-participating schools are government schools of States and Territories that are not participating States and Territories.

 

The Australian Education (Participating States and Territories) Determination 2014, made under subsection 14(2) of the Act, determined the participating States and Territories as New South Wales, South Australia and the Australian Capital Territory.  All other States and Territories are therefore non-participating States and Territories.

 

Recurrent funding for participating schools is calculated as set out in Part 3 of the Act, which provides for needs based funding (consisting of a base amount per student for a school plus loadings for educational disadvantage) and associated transitional arrangements.

 

Recurrent funding amounts for non-participating schools are set out in Part 4 of the Act.  Essentially, Part 4 provides for the calculation of a total amount payable for all non-participating schools by multiplying the amount payable for non-participating schools in the previous year by an indexation factor determined by the Minister. These funding arrangements are consistent with the previous arrangements for government schools under the Federal Financial Relations Act 2009.

 

Paragraph 65(2)(b) of the Act provides that, for any year other than 2014, the total amount of recurrent funding payable to non-participating States and Territories for non-participating schools located in those States or Territories, is the total amount payable for the previous year for those States and Territories, indexed in the manner determined by the Minister by legislative instrument made under subsection 65(3). The determination under subsection 65(3) must include a statement of the total amount for 2015.

 

Subsection 65(7) of the Act then empowers the Minister to determine, by legislative instrument, the manner in which the amount under subsection 65(2) is to be split between the non-participating States and Territories.


Operation of determination

The Determination:

  1. sets out the manner in which the total amount payable for 2014 for non-participating States and Territories under Part 4 of the Act is indexed to produce the total amount payable to non-participating States and Territories for non-participating schools for 2015 (section 4);
  2. sets out that total amount (section 5); and
  3. sets out how the total amount is split between the non-participating States and Territories (section 6).

The Determination gives effect to the commitment by the Australian Government to pay Commonwealth schools funding to States and Territories on the same basis, irrespective of whether they are participating or non-participating under the Act. That is, the total amount payable to non-participating States and Territories for 2015, and the amount for each non-participating State and Territory, are the same as they would have been had the amounts been calculated under Part 3 of the Act (recurrent funding for participating schools).

Consultation

There was extensive consultation with representatives of State and Territory education authorities in the lead up to the preparation of the Act. Consultation included significant negotiation on funding matters, including specifically on the requirements under the Act for a State or Territory to be funded as a participating State or Territory under Part 3, or as a non-participating State or Territory under Part 4. The Determination gives effect to the outcome of that consultation.

The annual entitlement for government schools is calculated on the basis of government school student information reported by States and Territories. Consultation occurs with States and Territories throughout the relevant year on both the accuracy of this data and the funding calculations that will occur as a result.

Regulatory Impact Statement

This Determination does not require a Regulatory Impact Statement (RIS) or a Business Cost Calculator Figure. The Determination gives effect to a policy already enacted through the Act, and is simply the mechanism to give effect to that policy. 

Authority

Subsections 65(3) and (7) of the Act.

Explanation of Provisions

Sections 1 and 2

Sections 1 and 2 of the Determination are formal provisions setting out the name and date of commencement of the Determination.

Section 3

Section 3 of the Determination defines the term “the Act” for the purposes of the Determination.

Section 4

Section 4 of the Determination provides that the manner of indexing the total amount payable for the previous year for non-participating States and Territories under Part 4 of the Act is by multiplying that amount by 1.12999928392238.  This indexation factor ensures that the non-participating States and Territories receive as much Commonwealth funding for their schools as if they had been participating States and Territories.

Section 5

Section 5 of the Determination sets out the total amount payable under Part 4 of the Act to non-participating States and Territories for 2015, as $3,342,951,952.

Section 6

Section 6 of the Determination sets out how the total amount mentioned in section 5 is to be split amongst the non-participating States and Territories, as follows:

Item

Non-participating State or Territory

Amount:

1

Victoria

$1,303,297,220

2

Queensland

$1,204,971,607

3

Western Australia

$537,184,733

4

Tasmania

$158,140,840

5

Northern Territory

$139,357,552

 


Statement of Compatibility with Human Rights

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

 

Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016

 

This legislative 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 Australian Education Act 2013 (Act) provides for (amongst other things) Commonwealth recurrent funding for “participating schools” and “non-participating schools”. Participating schools are all non-government schools, and government schools of “participating States and Territories”; non-participating schools are government schools of States and Territories that are not participating States and Territories.

 

The Australian Education (Participating States and Territories) Determination 2014, made under subsection 14(2) of the Act, determined the participating States and Territories as New South Wales, South Australia and the Australian Capital Territory.  All other States and Territories are therefore non-participating States and Territories.

 

Recurrent funding for participating schools is calculated as set out in Part 3 of the Act, which provides for needs based funding (consisting of a base amount per student for a school plus loadings for educational disadvantage) and associated transitional arrangements.

 

Recurrent funding amounts for non-participating schools are set out in Part 4 of the Act.  Essentially, Part 4 provides for the calculation of a total amount payable for all non-participating schools by multiplying the amount payable for non-participating schools in the previous year by an indexation factor determined by the Minister. These funding arrangements are consistent with the previous arrangements for Commonwealth funding of government schools under the Federal Financial Relations Act 2009 (FFR Act).

 

The Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016 (Determination) is made under Part 4 of the Act, and:

  1. sets out the manner in which the total amount payable for 2014 for non-participating States and Territories under Part 4 of the Act is indexed to produce the total amount payable to non-participating States and Territories for non-participating schools for 2015 (section 4);
  2. sets out that total amount (section 5); and
  3. sets out how the total amount is split between the non-participating States and Territories (section 6).

The Determination gives effect to the commitment by the Australian Government to pay Commonwealth schools funding to States and Territories on the same basis, irrespective of whether they are participating or non-participating under the Act. That is, the total amount payable to non-participating States and Territories for 2015, and the amount for each non-participating State and Territory, are the same as they would have been had the amounts be calculated under Part 3 of the Act (recurrent funding for participating schools).

Human rights implications

 

The instrument engages the following human rights, which are discussed in more detail below:

  • the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
  • the right to education of school aged children with disability under Article 24 of the United Nations Convention on the Rights of Persons with Disability (UNCRPD); and
  • the right to equality and non-discrimination in, amongst other international human rights treaties, Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR), Article 2(2) of the ICESCR and Article 2 on the Convention on the Rights of the Child (CRC).

 

Right to Education

 

The instrument engages the right to education, set out in Article 13 of the ICESCR and the rights to education of school‑aged children with disability set out in Article 24 of the UNCRPD. The right to education recognises the important personal, societal, economic and intellectual benefits of education. It requires education be available, safe, and appropriately resourced, dependent on the needs of the child. The rights of school-aged children with disability recognises that children with disability should not be excluded from quality, free primary and secondary education on the basis of disability, that they can access such education on an equal basis with others in the community in which they live and that they receive the support required, within the general education system, to facilitate their effective education.

 

This legislative instrument engages and promotes the right to education by providing recurrent school funding to non-participating States and Territories in accordance with the Act. This instrument facilitates the targeting of resourcing to schools to assist them in providing appropriately resourced education to all school-aged students.

 

This legislative instrument is compatible with the right to education.

 

Right to Equality and Non-Discrimination

 

The instrument engages the right to equality and non-discrimination which is found throughout the international human rights treaties, including Articles 2 and 26 of the ICCPR, Article 2(2) of the ICESCR and Article 2 of the CRC. The right to equality and non-discrimination confirms that all people are equal and deserving of the same respect. It recognises that people may need to be treated differently in order to achieve equality, for example, by targeting disadvantage.

 

This legislative instrument engages and promotes the right to equality and non-discrimination by qualifying schools in non-participating States and Territories to be eligible for funding in accordance with funding entitlements provided for in Part 3 of the Act. This enables comparable access to recurrent funding for non-participating States and Territories as participating States and Territories, thereby increasing equity in access for all school-aged children to school education.

 

The legislative instrument is therefore compatible with the right to equality and non‑discrimination.

 

Conclusion

This legislative instrument is compatible with human rights and specifically promotes the human rights to education, equality and non-discrimination.

 

 

Simon Birmingham

Minister for Education and Training

 

Overview

The Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016 was enacted to address the issue of providing equitable funding for government schools across all states and territories. This legislation, made by the Minister for Education and Training under the Australian Education Act 2013, aims to ensure that non-participating states and territories receive Commonwealth funding for their schools in a manner consistent with funding provided to participating states and territories. This is to maintain fairness and equity in educational funding across the country, irrespective of a state or territory’s participation status under the Act. The Act provides for Commonwealth recurrent funding for participating schools, which include all non-government schools and government schools of participating states and territories, as well as for non-participating schools, which are government schools of states and territories not participating under the Act. By making this determination, the Minister has indexed the total amount payable for non-participating states and territories for 2015 and set out how this amount is to be split among the non-participating states and territories. This approach ensures that the total amount payable to non-participating states and territories for 2015, and the amount for each non-participating state and territory, mirrors what would have been calculated under the funding arrangements for participating schools.

Scope and Application

The Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016 is a legislative instrument made under the Australian Education Act 2013. It applies to the non-participating States and Territories in the context of Commonwealth recurrent funding for schools. The Act distinguishes between participating schools, which include all non-government schools and government schools of participating States and Territories, and non-participating schools, which are government schools in States and Territories that have not opted to participate under the Act. The Determination sets out the total amount of recurrent funding for non-participating schools for the year 2015 and specifies how this amount is to be distributed among the non-participating States and Territories. The Determination ensures that the non-participating States and Territories receive funding consistent with what they would have received had they been participating States and Territories. This approach is consistent with the Australian Government’s commitment to equitable funding across all States and Territories, irrespective of their participation status under the Act. The Determination also gives effect to the outcome of extensive consultations with State and Territory education authorities that took place during the development of the Act.

Key Provisions

The Australian Education (Financial Assistance for Non-participating States and Territories) Determination 2016 (Determination) lays out the funding allocations for schools in non-participating states and territories for the year 2015. Under section 4 of the Determination, the total amount payable to non-participating states and territories for 2014 is indexed using a factor of 1.12999928392238. Section 5 of the Determination specifies that the total amount payable for 2015 is $3,342,951,952. Section 6 details how this total amount is distributed among the non-participating states and territories, with specific allocations for Victoria, Queensland, Western Australia, Tasmania, and the Northern Territory. The Act imposes obligations on the Minister for Education and Training to determine the total amount of funding for non-participating schools and to ensure that the funding is distributed equitably among the non-participating states and territories. The Determination mandates that the funding for non-participating states and territories should be calculated in a manner that aligns with the funding arrangements for participating schools, thereby maintaining consistency in funding across all states and territories. This includes ensuring that the funding for non-participating schools in 2015 reflects the same calculations and indexation factors as would apply if these schools were participating schools. There are no specific offences, penalties, or civil/criminal consequences outlined within the Determination itself for breaches of its provisions. However, breaches of the Australian Education Act 2013, under which this Determination is made, could potentially lead to legal actions or administrative penalties as prescribed by the overarching legislation. The Determination itself serves as a legislative instrument to operationalise the funding commitments made under the Act, ensuring that the human rights to education and equality are upheld through consistent and equitable funding practices across all states and territories.

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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.