EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Finance
Financial Framework (Supplementary Powers) Act 1997
Financial Framework (Supplementary Powers) Amendment
(Education Measures No. 3) Regulations 2022
The Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) confers on the Commonwealth, in certain circumstances, powers to make arrangements under which money can be spent; or to make grants of financial assistance; and to form, or otherwise be involved in, companies. The arrangements, grants, programs and companies (or classes of arrangements or grants in relation to which the powers are conferred) are specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the Principal Regulations). The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non‑corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.
The Principal Regulations are exempt from sunsetting under section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (item 28A). If the Principal Regulations were subject to the sunsetting regime under the Legislation Act 2003, this would generate uncertainty about the continuing operation of existing contracts and funding agreements between the Commonwealth and third parties (particularly those extending beyond 10 years), as well as the Commonwealth’s legislative authority to continue making, varying or administering arrangements, grants and programs.
Additionally, the Principal Regulations authorise a number of activities that form part of intergovernmental schemes. It would not be appropriate for the Commonwealth to unilaterally sunset an instrument that provides authority for Commonwealth funding for activities that are underpinned by an intergovernmental arrangement. To ensure that the Principal Regulations continue to reflect government priorities and remain up to date, the Principal Regulations are subject to periodic review to identify and repeal items that are redundant or no longer required.
Section 32B of the FF(SP) Act authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Principal Regulations. Section 32B also authorises the Commonwealth to make, vary and administer arrangements for the purposes of programs specified in the Principal Regulations. Section 32D of the FF(SP) Act confers powers of delegation on Ministers and the accountable authorities of non-corporate Commonwealth entities, including subsection 32B(1) of the Act. Schedule 1AA and Schedule 1AB to the Principal Regulations specify the arrangements, grants and programs.
Section 65 of the FF(SP) Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Financial Framework (Supplementary Powers) Amendment (Education Measures No. 3) Regulations 2022 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for the Government to provide financial assistant to Education Services Australia Limited (ESA) to, amongst other things, support and implement the work of the Education Ministers Meeting (EMM). The Department of Education has policy responsibility for projects and initiatives managed by EMM.
The EMM (comprised of ministers responsible for education from the Commonwealth, states and territories) replaced the Council of Australian Governments (COAG) Education Council to manage education and relates matters. ESA is a company limited by guarantee, established by education Ministers on 1 March 2010, to continue providing assistance to, and implementing the projects and initiatives of, the EMM following the discontinuation of the COAG Education Council.
ESA acted as the legal entity for the former COAG Education Council to facilitate secretariat and other support services to all Education Council members as well as coordinating projects and initiatives agreed by the Education Council to be implemented nationally. ESA’s objectives include:
- advancing key nationally agreed education initiatives, programs and projects by providing services including:
- researching, testing and developing effective and innovative technologies and communication systems for use in education;
- devising, developing and delivering curriculum and assessment, professional development, career and information support services;
- facilitating the pooling, sharing and distribution of knowledge, resources and services to support and promote eLearning;
- supporting national infrastructure to ensure access to quality-assured systems and content and interoperability between individuals, entities and systems; and
- creating, publishing, disseminating and market curriculum and assessment materials,
ICT-based solutions, products and services to support learning, teaching, leadership and administration.
The Australian Government has contributed administered funding of $1.1 million in 2022-23 for the 2022-23 National Project Fund.
Details of the Regulations are set out at Attachment A. A Statement of Compatibility with Human Rights is at Attachment B.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Regulations commence on the day after registration on the Federal Register of Legislation.
Consultation
In accordance with section 17 of the Legislation Act 2003, consultation has taken place with the Department of Education.
A regulation impact statement is not required as the Regulations only apply to non‑corporate Commonwealth entities and do not adversely affect the private sector.
Details of the Financial Framework (Supplementary Powers) Amendment
(Education Measures No. 3) Regulations 2022
Section 1 – Name
This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 3) Regulations 2022.
Section 2 – Commencement
This section provides that the Regulations commence on the day after registration on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.
Section 4 – Schedules
This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.
Schedule 1 – Amendments
Financial Framework (Supplementary Powers) Regulations 1997
Item 1 – Part 1 of Schedule 1AB
This item repeal the Part and substitute with “Part 1—Arrangements under which public money is, or may become, payable by the Commonwealth”.
New table item 1 of Part 1 of Schedule 1AB establishes legislative authority for the Government to provide financial assistant to Education Services Australia Limited (ESA) to, amongst other things, support and implement the work of the Education Ministers Meeting (EMM). The Department of Education (the department) has policy responsibility for projects and initiatives managed by EMM.
On 26 June 2020, National Cabinet commissioned the Review of Council of Australian Governments (COAG) Councils and Ministerial Forums (the Review) in order to rationalise and reset their work. On 23 October 2020, National Cabinet accepted the Review’s recommendations (https://www.pmc.gov.au/sites/default/files/final-report-review-coag-councils-ministerial-forums.pdf) that include reducing the number of ministerial forums and ensuring that those that remain are more agile and responsive, with direct responsibility for decision-making resting with Ministers.
On 11 December 2020, the COAG Education Council met for the final time and agreed to issue a communique, which noted that Education Ministers would continue to meet in 2021 as the EMM. The final communique from the COAG Education Council was published on 19 December 2022 (https://www.dese.gov.au/collections/meeting-communiques-education-council-2020), which announce its replacement by EMM.
The EMM (comprised of ministers responsible for education from the Commonwealth, states and territories) met on 30 April 2021. The EMM Terms of Reference describe its purpose as providing, “… a forum for national cooperation on early childhood education and care, school education, higher education and international education. The forum progresses items of national strategic importance within the portfolio collaboratively to achieve agreed objectives and priorities.”
The Australian Government provides funding to ESA, a company limited by guarantee and established by Education Ministers on 1 March 2010, to continue providing assistance to, and implementing the projects and initiatives of, the EMM following the discontinuation of the COAG Education Council.
ESA acted as the legal entity for the former COAG Education Council to facilitate secretariat and other support services to all EMM members as well as coordinating projects and initiatives agreed by the EMM to be implemented nationally. ESA’s objectives include:
- advancing key nationally agreed education initiatives, programs and projects by providing services including:
- researching, testing and developing effective and innovative technologies and communication systems for use in education;
- devising, developing and delivering curriculum and assessment, professional development, career and information support services;
- facilitating the pooling, sharing and distribution of knowledge, resources and services to support and promote eLearning;
- supporting national infrastructure to ensure access to quality-assured systems and content and interoperability between individuals, entities and systems; and
- creating, publishing, disseminating and market curriculum and assessment materials,
ICT-based solutions, products and services to support learning, teaching, leadership and administration.
All Australian Education Ministers are members of ESA, and all jurisdictions financially contribute to its operations and agreed activities.
Examples of projects and initiatives include supporting access to national online learning services for schools; supporting safe and supportive school communities; supporting additional analysis of data from certain national surveys and assessments of school students and schools; attendance strategies for school students; support for the national implementation of the National Assessment Program – Literacy and Numeracy (NAPLAN) online; and support to coordinate and facilitate school education reform initiatives.
Examples of completed or ongoing ESA projects include:
Online National Assessment Platform
Enables online delivery of national assessment across all Australian schools, using contemporary assessment and reporting technology to deliver NAPLAN and National Assessment Program (NAP) sample testing. 2022 marked Australia’s completed transition to NAPLAN Online testing, with over 1.2 million students submitting online tests from 9,315 schools.
Digital Technologies Hub
Supports the Digital Technologies curriculum with high-quality resources and services for teachers, students and parents. A total of 274,200 users visited over one million pages throughout 2021–22.
Maths Hub
An online portal offering teaching and learning resources to help students build, develop and nurture mathematics and numeracy skills. The portal also provides materials for parents and families to support their child’s maths learning at home. Since launching in February 2022, the site had more than 6,000 users and 23,000 page views, with a total of 425 completed Number Checks.
Student Wellbeing Hub
Supports the Australian Student Wellbeing Framework. Provides information, resources and professional development for teachers, students and parents, for the creation and maintenance of a safe and welcoming school environment for all students. Users increased by 16 per cent to over 161,200.
Nationally Consistent Collection of Data on School Students with Disability (NCCD)
Supports the annual national schools’ census, fostering better understanding of the needs of students with disability and how these students can be best supported at school. The portal had 326,500 users and 8.5 million page views.
Funding to ESA is provided as a payment of financial assistance expended in accordance with the department’s Secretary Instructions and delegations on expenditure of relevant money, and in accordance with the Public Governance, Performance and Accountability Act 2013 and the Financial Framework (Supplementary Powers) Act 1997. A delegate of the Secretary, authorised by the financial delegations of the department, will be responsible for entering into any arrangements in relation to any relevant expenditure.
The department entered into a contract for services with ESA that involves payments for services provided, including support services to all Education Ministers Meeting members as well as coordinating projects and initiatives agreed by the Education Ministers Meetings to be implemented nationally.
Funding decisions made in connection with payments to ESA are not considered appropriate for independent merits review as these decisions relate to the appointment of ESA to undertake a specified function, being the financial administrator of certain funds contributed by member jurisdictions of the EMM. Further to this, the specialised role and operations of ESA mean payments are only able to be provided to ESA for the purposes outlined in its contract with the department. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.40 to 4.43 of the guide, What decisions should be subject to merit review?).
The Review of COAG Councils and Ministerial Forums was informed by input from a wide range of stakeholders. The Review interviewed First Ministers, 16 Commonwealth and 13 state and territory ministers to ensure input from all existing ministerial forums. A suite of surveys were completed by chairs and secretariats of existing ministerial forums and a small number of academic submissions were considered. First Ministers were asked to consult with their ministerial colleagues so they could represent views from across their jurisdiction in the consultation.
The consultation process identified significant support for building on the National Cabinet model and modifying the way in which ministers interacted under the previous COAG system.
School education reform funding to ESA, which represents the Government’s contribution to implementing EMM agreed projects and initiatives, comes in part from the National Schools Reform subprogram in Program 1.5: Early Learning and Schools Support, which is part of Outcome 1. Details are set out in Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at page 44. The Minister for Education approves funding to ESA for EMM purposes from this funding source, and most recently approved $1.1 million to meet the Australian Government’s share of costs for the 2022-23 National Project Fund.
It is not possible to specify the exact amount of future funding to be provided to ESA for this element. Final funding amounts are subject to a number of parameters, including negotiation and agreement of financial contributions by the Commonwealth, states and territories.
Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the following powers of the Constitution:
- the communications power (section 51(v));
- the external affairs power (section 51(xxix)); and
- the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect.
Communications power
Under section 51(v) of the Constitution, the Commonwealth has power to legislate with respect to ‘postal, telegraphic, telephonic and other like services’.
Funding provided to ESA will facilitate the development and delivery of online content connected to school education. For example, the National Schools Interoperability Program supports the development of digital learning infrastructure, and the Student Wellbeing Hub consists of content to be delivered online.
External affairs power
Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to ‘external affairs’. The external affairs power supports legislation implementing treaties to which Australia is a party.
Australia has obligations regarding the right of the child to education under Articles 4, 28(1) and 29(1)(a) of the Convention on the Rights of the Child (CRC), and the right to education under Articles 2(1) and 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article 28(1) of the CRC provides that ‘States Parties recognize the right of the child to education’. Pursuant to Article 4 of the CRC, Australia is required to ‘undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention’. Further, Article 29(1)(a) of the CRC provides:
1. States Parties agree that the education of the child shall be directed to:
(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential.
Article 13(1) of the ICESCR recognises the ‘right of everyone to education’. This specifically includes, pursuant to Article 13(2)(e), ‘the development of a system of schools at all levels’. Pursuant to Article 2(1), Australia relevantly undertakes to ‘take steps… to the maximum of its available resources, with a view to achieving progressively the full realization’ of this right ‘by all appropriate means, including particularly the adoption of legislative measures’.
Funding provided to ESA will help develop a world class school system by improving the quality of teaching in Australian schools which will, in turn, help improve the educational development of Australian school children and assist them to achieve their potential. Funding provided to ESA will further promote access to school education for Australian school children, as it will help ensure that schools are safe places for learning, with high-quality teaching and provision of school education.
Express incidental power and executive power
The express incidental power (section 51(xxxix) of the Constitution) empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in it by the Constitution. Together with the executive power (section 61 of the Constitution), section 51(xxxix) supports activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.
ESA is a national, not-for-profit company owned by all Australian Education Ministers. EMM comprises the Commonwealth Education Minister and all state and territory Education Ministers. Funding provided to ESA will support the delivery of EMM projects, including those in line with EMM’s reform agenda. In delivering such projects, ESA coordinates between the Commonwealth and all states and territories. The delivery of EMM projects features significant financial contributions from all jurisdictions involved (including the Commonwealth), and affects all jurisdictions nationally.
With respect to the executive power of the Commonwealth, funding to ESA may also facilitate the Commonwealth entering into and implementing intergovernmental agreements with the states and territories relating to school education reform.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Financial Framework (Supplementary Powers) Amendment (Education Measures
No. 3) Regulations 2022
This disallowable 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
Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non‑corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.
The Financial Framework (Supplementary Powers) Amendment (Education
Measures No. 3) Regulations 2022 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for the Government to provide financial assistant to Education Services Australia Limited (ESA) to, amongst other things, support and implement the work of the Education Ministers Meeting (EMM). The Department of Education has policy responsibility for projects and initiatives managed by EMM.
The EMM (comprised of ministers responsible for education from the Commonwealth, states and territories) replaced the Council of Australian Governments (COAG) Education Council to manage education and relates matters. ESA is a company limited by guarantee, established by Education Ministers on 1 March 2010, to continue providing assistance to, and implementing the projects and initiatives of, the EMM following the discontinuation of the COAG Education Council.
ESA acted as the legal entity for the former COAG Education Council to facilitate secretariat and other support services to all Education Council members as well as coordinating projects and initiatives agreed by the Education Council to be implemented nationally. ESA’s objectives include:
- advancing key nationally agreed education initiatives, programs and projects by providing services including:
- researching, testing and developing effective and innovative technologies and communication systems for use in education;
- devising, developing and delivering curriculum and assessment, professional development, career and information support services;
- facilitating the pooling, sharing and distribution of knowledge, resources and services to support and promote eLearning;
- supporting national infrastructure to ensure access to quality-assured systems and content and interoperability between individuals, entities and systems; and
- creating, publishing, disseminating and market curriculum and assessment materials,
ICT-based solutions, products and services to support learning, teaching, leadership and administration.
The Australian Government has contributed administered funding of $1.1 million in 2022-23 for the 2022-23 National Project Fund.
Human rights implications
This disallowable legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This disallowable legislative instrument is compatible with human rights as it does not raise any human rights issues.
Senator the Hon Katy Gallagher
Minister for Finance