Determination of Classes of Persons Who Are Not Overseas Students 2013

Administered by Department of Education

Legislation au F2013L00860 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Schools Assistance Act 2008Determination of Classes of Persons Who Are Not Overseas Students 2013

 

Schools Assistance Act 2008

 

Authority

 

The Schools Assistance Act 2008 provides for Commonwealth financial assistance to non-government schools. 

 

Section 173(1) of the Act provides that financial assistance is not to be provided to a State for overseas students. 

 

Section 173(4) of the Act provides that the Minister may, by legislative instrument, determine that a person is not an overseas student. 

 

Subsection 33(3) of the Acts Interpretation Act 1901 provides that 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.

 

Purpose and operation

 

The purpose of the Determination of Classes of Persons Who Are Not Overseas Students 2013 (the Determination) is to make provision for the widening of the classification of persons who are not to be regarded as overseas students.  This was deemed necessary due to the creation of new visa subclasses since 2009 by the Department of Immigration and Citizenship.  Without amending the current Determination a student holding one of these new visas would by default be regarded as an overseas student and would not attract recurrent assistance funding. 

 

The Determination revokes the Determination of Classes of Persons Who Are Not Overseas Students 2008 and replaces it with an expanded list of visa subclasses of persons who are not overseas students by adding a number of new and updated visa subclasses. 

 

Non-government schools will thereafter be able to include additional students in the School Census in order to attract recurrent assistance funding. 

 

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 

 

Explanation of Provisions

The Schedule to the Determination outlines which persons or classes of persons are to be so determined.

 

Commencement

 

The Determination commenced on 1 January 2013.

 

Note:  this Determination affects which students can be counted by schools in the Census of Non-Government Schools that occurs in August 2013. However, the purpose of counting these students in the census is to determine the school’s entitlement to funding for the 2013 Calendar Year. When a student is counted in the census in August, under the Act they are taken to have attended the school for the whole year, and the school is funded accordingly.

 

For this reason, the Determination needs to apply from the beginning of the year, to ensure that a student counted in the census can legitimately attract funding entitlement for the full calendar year. There will be no detrimental effect on the students concerned resulting from the retrospective effect of this Determination.

 

Consultation

 

The Determination has the effect of increasing the availability of recurrent assistance funding payable under the Act.  As the increase in the availability of funding has a beneficial effect on stakeholders, consultation was not undertaken as it was not deemed necessary. 

 


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

Schools Assistance Act 2008Determination of Classes of Persons Who Are Not Overseas Students 2013

 

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 purpose of the Determination of Classes of Persons Who Are Not Overseas Students 2013 (the Determination) is to make provision for the widening of the classification of persons who are not to be regarded as overseas students for the purposes of the Schools Assistance Act 2008 (the Act).  This will allow for more students at non-government schools to be eligible to receive recurrent assistance funding. 

 

Human Rights Implications

 

The Right to Education

 

The Determination engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights.  In particular, the Determination will allow for the provision of additional recurrent assistance funding to non-government schools who enrol eligible visa holders.  This will have the effect of increasing the funding provided by the Australian Government to improve educational outcomes for school students.  Students who are eligible to receive recurrent assistance funding normally pay a lower school fee rate than non-eligible students who may have to pay a Cost Recovery Fee.  The Determination will therefore improve the ability of students to access non-government schooling through reducing the amount of students who may otherwise pay a Cost Recovery Fee. 

 

To the extent that the right to education is engaged, this right is promoted as the Determination will enable funding under the Actto be available for an increased number of students holding certain visas.  It will also provide a wider range of choice to access non-government schooling through its effect of reducing school fees. 

 

Conclusion

 

The Determination is compatible with human rights because it generally advances the right to education by providing additional funding and widening choice of schooling under the Act.

Overview

The Determination of Classes of Persons Who Are Not Overseas Students 2013 was enacted to address the problem of non-government schools potentially losing recurrent assistance funding for students due to changes in visa classifications since 2009. The Schools Assistance Act 2008, enacted by the Parliament of Australia, provides financial assistance to non-government schools but excludes funding for overseas students. The 2013 Determination, issued under the authority of Section 173(4) of the Schools Assistance Act 2008, serves to expand the categories of visa holders who are not considered overseas students, thus allowing more students to qualify for recurrent assistance funding. This legislative instrument revokes the 2008 Determination and includes a broader list of visa subclasses that exclude students from being classified as overseas students. The policy objective is to increase the availability of funding for eligible students, thereby promoting access to education in non-government schools by reducing the financial burden on families through lower school fees.

Scope and Application

The Determination of Classes of Persons Who Are Not Overseas Students 2013 is a legislative instrument under the Schools Assistance Act 2008, which provides for financial assistance to non-government schools, excluding funding for overseas students. The Act applies to non-government schools in Australia, and the Determination specifically targets the classification of students who are not considered overseas students, thereby ensuring they are eligible for recurrent assistance funding. This Determination applies to the Commonwealth jurisdiction and replaces the 2008 version to accommodate new visa subclasses created since 2009. The Determination revokes the previous classification and updates the list of visa subclasses that do not qualify as overseas students, allowing non-government schools to include more students in their census for funding purposes. The instrument commenced on 1 January 2013, ensuring that students counted in the August census can attract funding for the entire calendar year. The Determination is compatible with human rights, particularly advancing the right to education by increasing funding availability and reducing school fees for eligible students.

Key Provisions

The Determination of Classes of Persons Who Are Not Overseas Students 2013 (the Determination) primarily amends the list of visa subclasses that determine who is not regarded as an overseas student under the Schools Assistance Act 2008 (the Act). Section 173(1) of the Act stipulates that financial assistance is not to be provided to a State for overseas students, while section 173(4) allows the Minister to determine by legislative instrument that a person is not an overseas student. The Determination (Schedule) expands the classification of non-overseas students by adding new and updated visa subclasses, thus excluding these students from the overseas student category. This expansion ensures that non-government schools can include more students in the School Census, thereby attracting recurrent assistance funding. The Determination imposes certain obligations on non-government schools and students. Schools must ensure that they correctly classify students according to the updated visa subclasses outlined in the Determination. This classification is crucial for schools to accurately report student numbers in the School Census, which is conducted in August. The accurate reporting of student numbers is essential for schools to determine their eligibility for recurrent assistance funding under the Act. Students, on the other hand, must hold the appropriate visa subclasses as specified in the Determination to be eligible for funding and to be counted in the School Census. There are no specific offences, penalties, or civil/criminal consequences outlined in the Determination for breaches of its provisions. However, the Determination’s purpose is to ensure that non-government schools can legitimately attract recurrent assistance funding for the full calendar year. Any misclassification of students could potentially lead to financial discrepancies and audits by the Department of Education. The ultimate consequence of non-compliance would be the inability of schools to claim the full extent of their entitled funding, thus impacting their financial stability and capacity to provide educational services. The Determination also asserts compatibility with human rights by promoting the right to education as outlined in Article 13 of the International Covenant on Economic, Social and Cultural Rights. By allowing more students to be eligible for recurrent assistance funding, the Determination enhances the availability of funds for non-government schools. This, in turn, reduces the financial burden on students, particularly those who might otherwise face higher fees. The expanded eligibility under the Determination thus supports broader educational access and affordability for students in non-government schools.

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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.