Explanatory Statement
Australian Education (SES Scores) Amendment Determination 2015 (No. 1)
Summary
The Australian Education (SES Scores) Amendment Determination 2015 (No. 1) (the Amendment Determination) is made by the Minister for Education and Training under subsection 52(2) of the Australian Education Act 2013 (the Act).
The purpose of the Amendment Determination is to set the SES scores for schools of the Lutheran Church of Australia Victorian District (incorporating schools in VIC, NSW & TAS) and Lutheran Church of Australia Queensland District (incorporating schools in QLD) Systems, by amending the existing Australian Education (SES Scores) Determination 2013 (Principal Determination).
Background
The socioeconomic status (SES) score of a school affects the amount of total public funding that is payable under the Act to the approved authority for the school. A school’s SES score determines its “capacity to contribute percentage” in accordance with a table set out in section 54 of the Act. In turn, that capacity to contribute percentage is a factor in the formula that determines the “base amount” of total public funding payable to an approved authority for a school as set out in section 33 of the Act.
The lower a school’s SES score, the lower its capacity to contribute percentage and the greater the base amount of total public funding to the school (on a per-student basis). Conversely, the higher a school’s SES score, the higher its capacity to contribute percentage, and the lower the base amount of total public funding to the school (on a per-student basis).
The Act provides that certain schools have a capacity to contribute percentage of 0 per cent and hence have no SES score. These schools are government schools, special schools, and special assistance schools for students with disability and other high-needs students, schools with a majority of Aboriginal and Torres Strait Islander students, and schools in remote areas that are not serviced by government schools (see subsections 52(6) and 54(1) of the Act).
For all other schools eligible for Commonwealth funding, an SES score needs to be determined. There are two methods by which a school’s SES score can be determined by the Minister under the Act. An SES score can be determined by the Minister by legislative instrument under subsection 52(2) or by administrative decision under subsection 52(3).
The determination of a school’s SES score by administrative decision under subsection 52(3) is the same method used to determine a school’s SES score under the Schools Assistance Act 2008 and is used to determine an individual school’s SES score. The method for determining an individual school’s SES score is set out in Subdivision B, Division 2, Part 3 of the Australian Education Regulation 2013 (Regulation). It essentially uses data from the Australian Bureau of Statistics about the income, education and occupation characteristics of the Statistical Areas in which the students of the school reside to generate a number representing the socioeconomic status of the student cohort, with 100 being the Australian “average” SES score.
The determination of a school’s SES score by legislative instrument under subsection 52(2) is done when all schools of a particular approved authority will have the same SES score. In determining the SES score of a school of an approved authority, section 20 of the Regulation requires the Minister to have regard to the “relevant arrangement” of the approved authority if it has one. Under section 6 of the Act, a “relevant arrangement” is a written arrangement between the Commonwealth and an approved authority relating to grants of financial assistance provided in accordance with the Act to the authority for the school. There are relevant arrangements with Lutheran Church of Australia Queensland District and Lutheran Church of Australia Victorian District. As part of these arrangements, the systems have requested that a student‑weighted system average SES score be calculated and applied to all their member schools.
As a matter of government policy, approved authorities for systems of schools are given the option of having the SES scores for all of their schools calculated on a student-weighted system average. The student-weighted system average SES for a system is calculated by multiplying the SES score of each individual school in that system by the number of enrolments at each individual school, then summing this calculation and dividing the total by the total number of enrolments in that system.
Lutheran Church of Australia Queensland District and Lutheran Church of Australia Victorian District have sought to have the SES scores for all of their schools re-calculated from their previous score on the basis that their circumstances are different from that originally considered, and the Minister for Education and Training has agreed to do so. The Amendment Determination gives effect to that decision.
Consultation
The department consulted with Lutheran Church of Australia Victorian District and Lutheran Church of Australia Queensland District in relation to the re-calculation of their system SES scores.
Regulatory Impact Statement
The Amendment Determination does not require a Regulatory Impact Statement (RIS) and there is no attendant regulatory burden.
The Amendment Determination directly and materially affects the financial interests of the not-for-profit sector in that it is a key instrument determining a factor that calculates the Commonwealth funding for the non-government schools operated by Lutheran Church of Australia Queensland District and Lutheran Church of Australia Victorian District. However, the Amendment Determination gives effect to a policy already enacted through the Act and is simply the mechanism to give effect to that policy.
Authority
Determinations of SES scores may be made by the Minister for Education and Training by way of legislative instrument under subsection 52(2) of the Act. By operation of subsection 33(3) of the Acts Interpretation Act 1901, the power to make determinations includes a power to amend determinations.
In determining the SES score of a school of an approved authority under subsection 52(2), section 20 of the Regulation requires the Minister to have regard to the relevant arrangement of the approved authority if it has one. Lutheran Church of Australia Queensland District and Lutheran Church of Australia Victorian District currently have relevant arrangements in place. As part of these arrangements, the systems have requested that a student-weighted system average SES score be re-calculated and applied to all their member schools.
Explanation of Provisions
Sections 1 and 2
Sections 1 and 2 of the Amendment Determination are formal provisions setting out the name and date of commencement of the Determination.
The Amendment Determination commences on the day after it is registered so as not to interrupt the existing determinations, as SES scores are determined to have effect for calendar (i.e. school) years.
Section 3
Section 3 of the Amendment Determination sets out the Minister’s legal authority to make the Determination.
Section 4 and Schedule 1
Section 4 provides that the Australian Education (SES Scores) Determination 2013 is amended as set out in Schedule 1 to the Amendment Determination.
That Schedule removes items 13 and 19 of the table in the Principal Determination, which provided the original SES scores of each school of Lutheran Church of Australia Queensland District being 103, and of Lutheran Church of Australia Victorian District being 101. The Schedule inserts new items 13 and 19 of the table in the Principal Determination, which provides that the SES score of Lutheran Church of Australia Queensland District is 102, and the SES score of Lutheran Church of Australia Victorian District is 100. These SES score will be used to calculate the Commonwealth recurrent funding for the school under the Act for 2015 and each later year, unless and until the determination is amended or revoked. That Schedule also includes the addition of NSW to reflect that some of the schools the Lutheran Church of Australia Victorian District is approved for are located in NSW.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Education (SES Scores) Amendment Determination 2015 (No. 1)
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 socioeconomic status (SES) score of a school affects the amount of funding that is payable under the Australian Education Act 2013 (the Act) to the approved authority for a school. A school’s SES score determines its “capacity to contribute percentage”, in accordance with a table set out in section 54 of the Act. In turn, that “capacity to contribute percentage” is a factor in the formula that determines the “base amount” of funding payable to an approved authority for a school.
The Act provides that certain schools have a “capacity to contribute percentage” of 0 per cent, and hence have no SES score: government schools; special schools and special assistance schools for students with disability and other high-needs students; schools with a majority of Aboriginal and Torres Strait Islander students; and schools in remote areas that are not serviced by government schools.
The determination of a school’s SES score by legislative instrument under subsection 52(2) of the Act is done when all schools of a particular approved authority will have the same SES score.
This legislative instrument determines the SES scores for the schools of Lutheran Church of Australia Queensland District and Lutheran Church of Australia Victorian District.
Human rights implications
The instrument engages the following human rights:
Right to Education
The instrument engages the right to education which is set out in Article 13 of the International Covenant on Economic, Social and Cultural Rights. 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.
This legislative instrument engages the right to education by giving effect to the “capacity to contribute” mechanism in the Act. The instrument operates to differentiate the base amount of funding provided for the education of students by reference to the school communities’ socio-economic status. In doing so, it assists in allocating funding to schools in greater need of that funding, thereby increasing access to, and improving the outcomes of, school education.
This legislative instrument is compatible with the right to education.
Right to Equality and Non-Discrimination
The instrument also 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.
The right to equality and non-discrimination is engaged and promoted by the instrument which gives effect to the “capacity to contribute” mechanism in the Act. This mechanism enables the base amount of funding provided for the education of students to be differentiated, on a needs basis, by reference to the school communities’ socio-economic status. In doing so, it assists in allocating funding to schools in greater need of that funding, thereby increasing equity in access to, and improving the outcomes of, school education. The instrument therefore promotes the right to equality and non-discrimination. This legislative instrument is compatible with the right to equality and non-discrimination.
Conclusion
This legislative instrument is compatible with human rights because it is part of the mechanisms in the Act that promote the human rights of equity and education.
Simon Birmingham
Minister for Education and Training