EXPLANATORY STATEMENT
Issued by the authority of the Minister for Education
Australian Education Regulations 2023
Australian Education (Prescription of Guidelines and Documents) Amendment (Prescription of Capital Grants Program Guidelines) Determination 2025
AUTHORITY
The Australian Education (Prescription of Guidelines and Documents) Amendment (Prescription of Capital Grants Program Guidelines) Determination 2025 (the Amendment Determination) is made under subsection 5A(1) of the Australian Education Regulations 2023 (the Regulations).
Subsection 130(3) of the Australian Education Act 2013 (the Act) provides that the regulations may allow the Minister for Education (the Minister) to determine matters in relation to anything in relation to which regulations may be made.
Subsection 5A(1) of the Regulations provides that for the purposes of a definition in subsection 4(1), the Minister may, by legislative instrument, determine that guidelines are prescribed for the purposes of the Regulations.
A determination made under subsection 5A(1) of the Regulations is a legislative instrument for the purposes of the Legislation Act 2003.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
Subsection 13(1) of the Legislation Act 2003 extends this principle to legislative instruments, unless otherwise stated. Subsection 130(3) of the Act authorises the making of regulations, which are legislative instruments under paragraph 10(1)(a) of the Legislation Act 2003. Accordingly, subsection 33(3) permits the Minister to amend or repeal instruments made under the Regulations, including those made under subsection 5A(1).
The amendments to the Australian Education Regulations (Prescription of Guidelines and Documents) Determination 2024 (the Principal Determination) made by the Amendment Determination rely on subsection 33(3) of the Acts Interpretation Act 1901 as applied by subsection 13(1) of the Legislation Act 2003.
PURPOSE AND OPERATION
The Act is the principal legislation by which the Australian Government provides Commonwealth financial assistance for schools.
The Regulations contain a number of provisions concerning the conditions and calculations of Commonwealth financial assistance to states and territories for schools, matters relevant to the effective and efficient administration of that assistance, and matters relevant to the provision of prescribed circumstances funding under the Act.
Section 5A of the Regulations empowers the Minister to determine by legislative instrument that guidelines and documents are prescribed for the purposes of the Regulations.
The Principal Determination prescribes certain guidelines and documents for the purposes of the Regulations. Section 5 of the Principal Determination prescribes certain guidelines for the purposes of the definitions in subsection 4(1) of the Regulations.
The purpose of the Amendment Determination is to amend section 5 of the Principal Determination so that the Capital Grants Program Guidelines 2025 are prescribed for the purposes of the definition of ‘Capital Grants Program Guidelines’ in subsection 4(1) of the Regulations. The Capital Grants Program Guidelines 2025 have a new Schedule 2. The purpose of this schedule is to give administrative effect to the Australian Government’s decision to provide Commonwealth funding support for the establishment of a new Hindu school. Other than the new Schedule 2, there is no other substantive difference between these new guidelines and the previous Capital Grants Program Guidelines 2024.
COMMENCEMENT
The Amendment Determination will commence on the day after it is registered on the Federal Register of Legislation.
CONSULTATION
The Department consulted on the Capital Grants Program Guidelines 2025 with the Association of Independent Schools of NSW and the Hindu Education & Cultural Centre, because the effect of the new Schedule 2 of the Capital Grants Program Guidelines 2025 is limited to these entities. The Department received responses that were supportive of the Capital Grants Program Guidelines 2025, and no changes to the guidelines were requested. The Department has also notified other block grant authorities (BGAs) that the Department is prescribing the new Capital Grants Program Guidelines 2025 and advised them that the changes made to the guidelines do not impact them.
The Minister is satisfied that additional consultation in respect of the Amendment Determination was not necessary, because the Department has already consulted in respect of the Capital Grants Program Guidelines 2025 and it is those guidelines which set out the Australian Government’s detailed administrative requirements for the administration of the Capital Grants Program for non-government schools, the Building Boarding Schools On-Country program and School Establishment Funding. The Amendment Determination is a simple, technical amendment that prescribes the Capital Grants Program Guidelines 2025 for the purposes of the Regulations.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Education (Prescription of Guidelines and Documents) Amendment (Prescription of Capital Grants Program Guidelines) Determination 2025
The Australian Education (Prescription of Guidelines and Documents) Amendment (Prescription of Capital Grants Program Guidelines) Determination 2025 (the Amendment Determination) 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
The Australian Education Regulations (Prescription of Guidelines and Documents) Determination 2024 (the Principal Determination) prescribes certain guidelines and documents for the purposes of the Australia Education Regulations 2023 (the Regulations). The Amendment Determination amends section 5 of the Principal Determination so that the Capital Grants Program Guidelines 2025 are prescribed for the purposes of the definition of ‘Capital Grants Program Guidelines’ in subsection 4(1) of the Regulations.
Human rights implications
The Amendment Determination engages the right to education under Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Articles 28 and 29 of the Convention on the Rights of the Child (UNCRC).
Right to Education
Article 13 of the ICESCR recognises the right of everyone to education, which is directed towards the full development of the human personality and the sense of its dignity, and to enable all persons to participate effectively in society. It also recognises the liberty of parents and legal guardians to choose non-government schools for their children’s education, provided those schools conform to minimum educational standards as may be laid down or approved by the government. The right to education for children is also found in Articles 28 and 29 of the UNCRC.
Section 5A of the Regulations empowers the Minister to prescribe, by legislative instrument, certain guidelines and other documents that are referenced in the Regulations. The effect of the Amendment Determination is that the Capital Grants Program Guidelines 2025 are prescribed for the purposes of the definition of ‘Capital Grants Program Guidelines’ in subsection 4(1) of the Regulations. This document provides for matters relevant to capital funding for non-government schools provided under the Australian Education Act 2013 (the Act).
This measure promotes the right to education by prescribing the document which sets out the Commonwealth’s detailed administrative requirements for the administration of capital funding under the Act. In particular, this measure facilitates the provision of financial assistance to non-government primary and secondary school communities where they otherwise may not have access to sufficient capital resources, thereby supporting the liberty of parent and legal guardians to choose non-government schools for their children’s education.
Conclusion
The Amendment Determination is compatible with human rights because it promotes the right to education under the ICESCR and the UNCRC.
The Hon Jason Clare MP
Minister for Education
Australian Education (Prescription of Guidelines and Documents) Amendment (Prescription of Capital Grants Program Guidelines) Determination 2025
EXPLANATION OF PROVISIONS
Section 1: Name
- This is a formal provision which provides that the name of the instrument is the Australian Education (Prescription of Guidelines and Documents) Amendment (Prescription of Capital Grants Program Guidelines) Determination 2025 (the Amendment Determination).
Section 2: Commencement
- This is a provision which provides that the Amendment Determination commences on the day after it is registered on the Federal Register of Legislation.
Section 3: Authority
- This is a provision which provides that the Amendment Determination is made under subsection 5A(1) of the Australian Education Regulations 2023 (the Regulations).
Section 4: Schedules
- This is a technical provision which explains that the instrument that is specified in a Schedule to the Amendment Determination, being the Australian Education Regulations (Prescription of Guidelines and Documents) Determination 2024 (the Principal Determination), is amended as set out in the applicable items in the Schedule concerned.
Schedule 1 – Amendments
Australian Education Regulations (Prescription of Guidelines and Documents) Determination 2024
Item 1
- Item 1 amends table item 1 in section 5 of the Principal Determination to omit ‘Capital Grants Program Guidelines 2024’ and substitute ‘Capital Grants Program Guidelines 2025’.
- Table item 1 in section 5 prescribes, for the purposes of subsection 5A(1) of the Regulations, the Capital Grants Program Guidelines.
- Subsection 5A(1) of the Regulations provides that, for the purposes of a definition in subsection 4(1) of the Regulations, the Minister may, by legislative instrument, determine that guidelines are prescribed for the purposes of the Regulations.
- Subsection 4(1) of the Regulations provides in the definition for ‘Capital Grants Program Guidelines’ that those guidelines are issued by the Department and prescribed by the Minister for the purposes of the Regulations from time to time.
- The effect of this amendment is that, for the purposes of subsection 5A(1) of the Regulations, the Capital Grants Program Guidelines 2025 are prescribed for the purposes of the definition of ‘Capital Grants Program Guidelines’ in subsection 4(1) of the Regulations.
Item 2
- Item 2 amends note 1 to section 5 of the Principal Determination to reflect that in 2025 the Capital Grants Program Guidelines—as well as the Choice and Affordability Guidelines and the Non-Government Reform Fund Guidelines—can be found on the Department’s website at www.education.gov.au
- These guidelines are published, may be used by members of the public and can be freely accessed.