EXPLANATORY STATEMENT
Student Learning Entitlement (Repeal) Instrument 2011
Issued by the authority of the Minister for Tertiary Education, Skills, Science and Research
Subject: Higher Education Support Act 2003
Student Learning Entitlement (Repeal) Instrument 2011
Authority:
Section 238-10 of the Higher Education Support Act 2003 (the Act) provides that the Minister may make guidelines providing for matters required or permitted, or necessary or convenient to be provided in order to carry out or give effect to the Act. In particular item 10 of the table in subsection 238-10(1) specifies that the Minister may make Student Learning Entitlement Guidelines to give effect to matters set out in Part 3-1.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument (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 condition, (if any), to repeal, rescind, revoke, amend, or vary any such instrument.
This legislative instrument repeals the Student Learning Entitlement Guidelines made on 21 July 2004 and registered on 24 October 2005.
Purpose and operation
On 21 July 2004, Brendan Nelson, the former Minister for Education, Science and Training, made the Student Learning Entitlement Guidelines which were gazetted on 27 July 2004 and registered on the Federal Register of Legislative Instruments on 24 October 2005.
On 26 September 2011, the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (the Amendment Act) received Royal Assent. The Amendment Act implements a demand driven funding system for bachelor courses at public universities from 1 January 2012.
Universities will now be able to determine the number of students that they choose to enrol in bachelor courses, with the exception of courses in medicine. Postgraduate and sub-bachelor courses of study will continue to be allocated by the Government.
Under the amendments, the student learning entitlement (SLE) which currently limits a student to the equivalent of approximately seven years full-time study as a Commonwealth supported student shall be repealed on 1 January 2012.
Chapters 2 and 5 of the SLE Guidelines contain matters still relevant to the operation of the Act and these are to be provided for in the Administration Guidelines.
Commencement
This legislative instrument commences on 1 January 2012.
Consultation
The Amendment Act gave effect to 2009‑10 Budget measures arising from the Government’s response to the Review of Australian Higher Education. The Review undertook extensive consultation with the higher education sector, including higher education providers, peak bodies, state and territory governments and other key stakeholders.
This legislative instrument is being repealed as a result of the legislative changes that have been made to the Act and to this extent is machinery in nature. On this basis consultation was not considered necessary and was not undertaken.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
STUDENT LEARNING ENTITLEMENT (REPEAL) INSTRUMENT 2011
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 Student Learning Entitlement Guidelines (the Guidelines) are made by the Minister under section 238‑10 of the Higher Education Support Act 2003 (the Act).
The Student Learning Entitlement (SLE) limits a student to the equivalent of seven years full‑time study as a Commonwealth supported student.
The Guidelines outline the requirements that must be met for a person to have additional SLE, and set out how additional SLE is calculated. The Guidelines also specify the circumstances in which a person has lifelong SLE and how lifelong SLE is calculated.
This legislative instrument repeals the Guidelines made on 21 July 2004 as SLE was abolished from 1 January 2012.
Human rights implications
Right to education
The instrument engages the right to education, contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights.
This instrument repeals the SLE Guidelines. SLE was abolished from 1 January 2012 and the Minister no longer has authority to make these Guidelines under the Act. The abolition of SLE means that students will no longer be limited to seven years of full-time study as a Commonwealth supported student.
To the extent that the right to education is engaged, this is promoted as it increases access to education.
Conclusion
This Legislative Instrument is compatible with human rights because it advances the protection of human rights.
Senator Chris Evans, Minister for Tertiary Education, Skills, Science and Research