EXPLANATORY STATEMENT
Determination made under section 46-40 of the Higher Education Support Act 2003
Issued by the authority of the Minister for Education
Subject: Higher Education Support Act 2003 (the Act)
Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2018 (Determination)
Authority
Subsection 46-40(3) of the Act provides that, the Minister must determine, by legislative instrument, the total payments made under that Part in respect of a year starting on or after 1 January 2017 before the start of that year.
The Determination revokes the previous determination, the Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2017 as amended. Under subsection 33(3) of the Acts Interpretation Act 1901, 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
The Determination:
- revokes the Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2017 as amended; and
- sets out the maximum amount of all payments for Commonwealth Scholarships for the 2018 to 2022 calendar years.
Compared to the Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2017, this instrument increases the maximum total payments to be made under Part 2-4 for Commonwealth Scholarships, retaining the maximum amount for 2018, increasing the maximum amount for 2019 to 2021, and providing a maximum amount for 2022.
The maximum amount of payments for Commonwealth Scholarships for 2018 and 2019 reflect the current legislated program arrangements under the Act.
The amounts determined for 2019 to 2022 are expressed with the 2019 indexation factor applied. The indexation factors for 2020 to 2022 are yet to be determined.
Consultation
Consultation was not undertaken on the Determination as it does not create new commitments, but implements Government decisions already announced.
Commencement
The Determination is a Legislative Instrument under the Legislation Act 2003. The instrument takes effect the day after it is registered on the Federal Register of Legislation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2018
This Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2018 (Determination) is compatible with 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
Subsections 46-40(3) and (4) of the Higher Education Support Act 2003 (the Act) provides that, the Minister must determine, by legislative instrument, the total payments made under Part 2-4 in respect of a year starting on or after 1 January 2017 before the start of that year.
The Determination:
- revokes the Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2017 as amended; and
- sets out the maximum amounts of all grants for Commonwealth Scholarships for the 2018 to 2022 calendar years.
Human Rights implications
Right to Education
The Determination engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights.
The Minister has the power to determine a maximum amount payable for Commonwealth Scholarships for the 2018 calendar year that differs from that already prescribed in the table in subsection 46‑40(1) of the Act. The Minister is required to determine the maximum amounts payable for the 2019 to 2022 calendar years. By doing so, the Determination will support the payments of the Commonwealth Scholarships in accordance with the table in subsection 46-40(1) of the Act. As the purposes of the Commonwealth Scholarships include the payment of scholarships to students either directly, indirectly or for post graduate research scholarships, the grant measures in the Determination enable access to education and therefore is compatible with, and promotes, the right to education. The maximum amounts are capped having regard to reasonable, necessary and proportionate constraints on spending. The Determination is compatible with, and does not impermissibly limit, the right to education.
This Determination is compatible with human rights because it provides clarity and surety of funding for programs that support access and equality in higher education.
Conclusion
This Determination enables access to education and is compatible with human rights.
The Hon Dan Tehan, Minister for Education