EXPLANATORY STATEMENT
Instrument prepared under subsection 41-50(1) of the Higher Education Support Act 2003
Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020
Authority
Subsection 41-50(1) of the Higher Education Support Act 2003 (the Act) provides that, before the start of a year, the Minister for Education (the Minister) must, by legislative instrument, cause a list to be prepared setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41-10 of the Act.
Purpose
The Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020 (the Instrument) sets out:
- each purpose of grant specified in the table in section 41-10 of the Act; and
- the maximum amounts of all grants for each purpose of grant for the 2021 calendar year.
The Instrument provides that the maximum amount for each purpose of grant is the same amount as the total payments determined under section 41-45 of the Act. The total payment amount will be set out in the Higher Education Support (Maximum Payments for Other Grants) Determination 2020 (Determination) once that determination has been made. This means that the maximum amount of grants under each purpose of grant for 2021 cannot exceed the total amount of payments determined under the Determination.
Commencement
The Instrument takes effect the day after it is registered on the Federal Register of Legislation.
Availability of merits review
The Commonwealth makes grants to eligible providers under Part 2-3 (Other grants) of the Act. These decisions are not made under the Instrument but are made taking into account the content of the Instrument.
Section 206-1 of the Act specifies the types of decisions made under the Act that are reviewable decisions. This is an exhaustive list. Funding decisions made under Part 2-3 of the Act are not specified at section 206-1 as decisions that are reviewable. The Instrument does not create new decision making powers, or provide the Minister with the power to establish a new review mechanism in addition to the review process available under the Act.
Consultation
Consultation was not undertaken on the Instrument as it does not create any new rights or liabilities or make any grants under Part 2-3 of the Act. Rather, the Instrument is a technical step that must be taken by the Minister before any grants can be made to eligible bodies corporate. As such, it was not appropriate for consultation to be undertaken on the Instrument.
Explanation of provisions
Section 1 provides the name of the Instrument.
Section 2 provides for the commencement of the Instrument the day after it is registered on the Federal Register of Legislation.
Section 3 states that the Instrument is made under subsection 41-50(1) of the Act.
Section 4 provides definitions for certain expressions used in the Instrument.
Section 5 sets out the maximum amounts of all grants which may be paid in 2021 for each purpose specified in the table in section 41-10 of the Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020
This Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020 (the 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 Instrument
Subsection 41-50(1) of the Higher Education Support Act 2003 (the Act) provides that before the start of a year, the Minister for Education (the Minister) must, by legislative instrument, cause a list to be prepared setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41-10 of the Act.
The Instrument sets out:
- each purpose of grant specified in the table in section 41-10 of the Act; and
- the maximum amounts of all grants for each purpose of grant for the 2021 calendar year.
The Instrument provides that the maximum amount for each purpose of grant is the same amount as the total payments determined under section 41-45 of the Act. The total payment amount will be set out in the Higher Education Support (Maximum Payments for Other Grants) Determination 2020 (Determination) once that determination has been made. This means that the maximum amount of grants under each purpose of grant for 2021 cannot exceed the total amount of payments determined under the Determination.
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 (ICESCR). Article 13(2)(c) of the ICESCR provides that ‘higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.’
The Minister is required to list the maximum amounts of all grants for each purpose of grant specified in the table in section 41-10 of the Act for the 2021 calendar year. The Instrument supports the payment of grants for these purposes. The purposes specified in this table include the promotion of equality of opportunity in higher education, the support of diversity and structural reform and the support of the training of research students (amongst other purposes). To the extent that the right to education is engaged by the Instrument, this right is promoted as the Instrument provides clarity of funding for programs that support these purposes, and the maximum amounts are capped having regard to reasonable, necessary and proportionate constraints on spending. The Instrument is therefore compatible with, and does not impermissibly limit, the right to education.
Conclusion
The Instrument is compatible with human rights because it provides clarity of funding for programs that support access and equality in higher education.
The Hon Dan Tehan MP, Minister for Education