Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020

Administered by Department of Education

Legislation au F2020L01616 Not in force Legislative Instrument

Legislation content

 

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

Overview

The Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020, prepared under subsection 41-50(1) of the Higher Education Support Act 2003, establishes the maximum amounts of grants that can be disbursed in 2021 for each grant purpose specified in section 41-10 of the Act. This legislative instrument ensures that the funding for higher education initiatives is clearly defined and limited to the total payments determined under section 41-45 of the Act, which will be detailed in the Higher Education Support (Maximum Payments for Other Grants) Determination 2020. This approach ensures that the grants do not exceed the financial constraints set by the Determination. The Instrument takes effect the day after it is registered on the Federal Register of Legislation and is designed to provide clarity and transparency in the funding of higher education programs, supporting the Minister’s obligations under the Act. The Instrument aligns with human rights obligations, particularly the right to education as outlined in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). By specifying the maximum grant amounts for various educational purposes, including promoting equality of opportunity and supporting research, the Instrument facilitates access to higher education and supports the progressive introduction of free education. This ensures that the right to education is promoted without being impermissibly limited, thus maintaining compatibility with human rights standards.

Scope and Application

The Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020 (the Instrument) is a legislative instrument prepared under the Higher Education Support Act 2003. It sets out the maximum amounts of all grants which may be paid in the 2021 calendar year for each purpose of grant specified in the table in section 41-10 of the Act. The purpose of the Instrument is to provide clarity and constraints on the funding available for higher education support, ensuring that the grants do not exceed the total payments determined under the Higher Education Support (Maximum Payments for Other Grants) Determination 2020. The Instrument applies to the Commonwealth level and is applicable to entities eligible for grants under the Higher Education Support Act 2003. It does not extend or restrict application through subordinate instruments beyond the specified maximum amounts for each purpose of grant. The Instrument is compatible with human rights, particularly the right to education, as it provides funding for programs that support access, equality, and structural reform in higher education.

Key Provisions

The Higher Education Support (Maximum Grant Amounts under Division 41 for 2021) List 2020 (the Instrument) sets out the maximum amounts for grants that may be paid in the 2021 calendar year for each purpose of grant specified in the table in section 41-10 of the Higher Education Support Act 2003 (the Act). According to Section 5 of the Instrument, the maximum amount for each purpose of grant is the same as the total payments determined under section 41-45 of the Act. These total payments will be detailed in the Higher Education Support (Maximum Payments for Other Grants) Determination 2020 (the Determination), which will be made once the determination has been finalised. Therefore, the maximum amount of grants under each purpose of grant for 2021 cannot exceed the total amount of payments determined under the Determination. The Minister for Education is required to prepare this Instrument before the start of the year, as stipulated in subsection 41-50(1) of the Act. This preparatory step is essential to establish the cap on the amount of grants that can be allocated to each purpose of grant for the forthcoming year. The Instrument is designed to provide clarity and structure to the grant allocation process, ensuring that the funding is appropriately directed towards the specified purposes within the constraints of the total payments determined. Under the Act, the Minister for Education must ensure that the grants provided to eligible providers are within the limits specified in the Instrument. This means that any funding decision made under Part 2-3 of the Act must comply with the maximum amounts set out in the Instrument. While funding decisions themselves are not reviewable under section 206-1 of the Act, the content of the Instrument plays a crucial role in guiding these decisions. The Instrument does not introduce new decision-making powers or alter the existing review mechanisms available under the Act. Failure to adhere to the maximum amounts specified in the Instrument may lead to discrepancies in the allocation of funds, potentially affecting the intended purposes of the grants. Although the Instrument does not explicitly outline penalties for non-compliance, any breach of the grant limits could result in scrutiny and potential corrective actions to ensure that the grants are used as intended. In summary, the Instrument serves as a regulatory framework that outlines the maximum amounts of grants that can be paid for various purposes in 2021. It ensures that the funding is allocated within the determined limits and supports the objectives of the Act by providing clarity and direction to the grant allocation process. Compliance with these limits is essential to maintain the integrity and effectiveness of the grant program.

Legal classification tags

Area of Law
Education Law
Instrument
Legislative Instrument
Concepts
Commencement Provisions
Regulatory Standards
Offence Provisions

Interactions

Authorises

All Versions

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.