Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2018

Administered by Department of Education

Legislation au F2018L01801 Not in force Legislative Instrument

Legislation content

 

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

Overview

The Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2018 was enacted to address the need for clarity and surety of funding for programs supporting access and equality in higher education. This legislative instrument was issued under the authority of the Minister for Education in accordance with subsection 46-40(3) of the Higher Education Support Act 2003. The primary objective of this Determination is to revoke the previous Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2017 and to establish the maximum amounts of all payments for Commonwealth Scholarships for the 2018 to 2022 calendar years. The Determination ensures that the maximum payments align with the current legislated program arrangements under the Act, providing a structured and indexed framework for scholarship funding over the specified period. This legislative instrument is compatible with human rights, particularly the right to education, by enabling access to higher education through supported scholarship programs.

Scope and Application

The Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2018 applies to the payment of Commonwealth Scholarships as outlined in Part 2-4 of the Higher Education Support Act 2003. The Determination sets the maximum total payments for Commonwealth Scholarships for the 2018 to 2022 calendar years, thereby regulating the financial support available for these scholarships under the Act. The instrument is applicable to all entities and individuals involved in the administration and distribution of Commonwealth Scholarships, including the Australian Government, scholarship recipients, educational institutions, and scholarship providers. The Determination operates nationally within the Commonwealth of Australia, ensuring a uniform standard for scholarship payments across all states and territories. It revokes the previous determination from 2017 and adjusts the maximum payment amounts for the specified years, reflecting the legislated program arrangements and current indexation factors. While the Determination does not explicitly state exclusions or thresholds, its application is inherently limited to the scope of Commonwealth Scholarships and the financial limits it establishes. The authority to make such determinations is vested in the Minister for Education under the Higher Education Support Act 2003, with the power to repeal or amend these instruments as necessary.

Key Provisions

The Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2018 (Determination) is a legislative instrument that sets the maximum amounts of payments for Commonwealth Scholarships for the 2018 to 2022 calendar years. This Determination is made under section 46-40 of the Higher Education Support Act 2003 (the Act) and is issued by the Minister for Education. It revokes the previous determination, the Higher Education Support (Maximum Payments for Commonwealth Scholarships) Determination 2017, and provides updated maximum amounts for the specified years. The maximum payments for 2018 remain the same as those prescribed in the Act, while the amounts for 2019 to 2022 are indexed and set to reflect current program arrangements and future indexation factors. The Determination imposes obligations on the Minister for Education to ensure the maximum amounts of payments for Commonwealth Scholarships are determined each year before the start of the relevant year, in accordance with the Act. The Minister must also ensure these amounts are compatible with human rights, as outlined in the Statement of Compatibility with Human Rights, which affirms that the Determination engages the right to education and does not impermissibly limit it. This requires the Minister to balance the reasonable, necessary, and proportionate constraints on spending with the need to support access to higher education. Failure to comply with the provisions of the Determination could lead to civil or administrative consequences, although the Determination itself does not specify the exact nature of these consequences. Under the Higher Education Support Act 2003, breaches of its provisions can lead to penalties, but the specific penalties are detailed in the Act rather than the Determination. The penalties can include fines, imprisonment, or both, depending on the nature and severity of the breach. It is essential for the Minister and relevant parties to adhere to the provisions set out in the Determination to avoid any potential legal or administrative repercussions.

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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.