Explanatory Statement
Australian Education (Participating States and Territories) Determination 2014
Summary
The Australian Education (Participating States and Territories) Determination 2014 (Determination) is made by the Minister for Education under subsection 14(1) of the Australian Education Act 2013 (Act).
The purpose of the Determination is to identify those States and Territories that are “participating States or Territories” for the purposes of the Act.
Background
The Act provides for (amongst other things) Commonwealth recurrent funding for “participating schools” and “non-participating schools”. Recurrent funding for participating schools is 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 for non-participating schools is set out in Part 4 of the Act. In addition, subsection 78(3) of the Act provides that approved authorities for more than one participating school must distribute Commonwealth recurrent funding in accordance with the Australian Education Regulation 2013 and must comply with Part 7 of the Act (Implementation Plans).
Participating schools are non-government schools, and government schools of States and Territories that the Minister has determined are “participating States and Territories” under subsection 14(1) of the Act. The Minister may determine a State or Territory to be a participating State or Territory if the State or Territory is party to the National Education Reform Agreement and has a bilateral agreement with the Commonwealth, from the date the determination takes effect.
A determination under subsection 14(1) can only come into force on 1 January of a year (subsection 14(2)).
New South Wales, South Australia and the Australian Capital Territory meet the requirements under the Act for a participating State or Territory from 1 January 2014.
A determination under subsection 14(1) is not disallowable (subsection 14(3)).
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 of the Act. The Determination gives effect to the outcome of that consultation.
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. The Act itself will be the subject of a post-implementation regulatory review.
Authority
The Determination is made under subsection 14(1) of the Act.
In determining a participating state or territory under subsection 14(1), the Minister must be satisfied that the state or territory is a party to the National Education Reform Agreement and has a bilateral agreement with the Commonwealth on 1 January 2014. New South Wales, South Australia and the Australian Capital Territory meet these requirements.
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 sets out the participating States and Territories under subsection 14(1) of the Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Education (Participating States and Territories) Determination 2014
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
This legislative instrument determines the status of a State or Territory as a “participating State or territory” for the purposes of the Australian Education Act 2013 (the Act). A State or Territory that is a participating State or Territory has its Commonwealth recurrent funding determined under Part 3 of the Act, must distribute that funding in accordance with the Regulation, and must comply with Part 7 of the Act (Implementation Plans).
To be recognised as a “participating State or Territory” for the purposes of the Act, a State or Territory must be party to the National Education Reform Agreement and have a bilateral agreement with the Commonwealth on 1 January 2014.
Human rights implications
The instrument engages the following human rights:
Right to Education
The instrument engages the right to education, set out in Article 13 of the International Covenant on Economic, Social and Cultural Rights and the rights to education of school‑aged children with disability set out in Article 24 of the Convention on the Rights of Persons with Disability. 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 qualifying schools in the participating States and Territories to be eligible for funding in accordance with the needs based funding entitlements provided for in Part 3 of the Act. Participating schools’ entitlements include a base amount of funding for the education of all students plus loading amounts calculated by reference to student need - including a loading for students with disability - and the school’s size and location. 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 International Covenant on Civil and Political Rights (ICCPR), Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 2 of the Convention on the Rights of the Child (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 the participating States and Territories to be eligible for funding in accordance with the needs based funding entitlements provided for in Part 3 of the Act. Participating schools’ entitlements include a base amount of funding for the education of all students plus loading amounts calculated by reference to student need (targeting students with disability, Aboriginal and Torres Strait Islander students, students with a low socioeconomic status and students with low English proficiency) and the school’s size and location. This instrument facilitates the allocation of funding to schools based on the educational disadvantage of the student population, the size of the school and the school’s location, 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.
Christopher Pyne
Minister for Education