Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2021

Administered by Department of the Prime Minister and Cabinet

Legislation au F2022L00022 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Indigenous Australians

Higher Education Support Act 2003

Higher Education Support
(Maximum Payments for Indigenous Student Assistance Grants)
Amendment Determination 2021

Purpose

This instrument varies the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 to revise the total maximum payments to be made under Part 2-2A of the Higher Education Support Act 2003 (the Act) in respect of the years 2022 to 2023. This instrument also amends the 2016 Determination to determine a new total maximum payment amount in respect of the year 2024.

Background

Part 2-2A of the Act provides for grants to higher education providers to assist Indigenous students. Grants under Part 2-2A of the Act are payable to higher education providers in respect of a year.

Subsection 38-45(1) of the Act provides that the total payments made under Part 2-2A in respect of a year must not exceed the amount determined by the Minister in respect of the year.

Subsection 38-45(2) provides that the Minister may, by legislative instrument, determine the total payments made under Part 2-2A in respect of a year. A single legislative instrument may determine amounts for multiple years. Subsection 38-45(4) provides that the Minister may, by legislative instrument, at any time before the end of a year, vary a determination made under subsection 38-45(2) for the year.

Regulatory Impact Statement

The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required for this instrument (OBPR reference: 24565).

Commencement

The instrument commences on the day after this instrument is registered on the Federal Register of Legislation.

Consultation

Consultation was undertaken with the Department of Education, Skills and Employment, which also administers the Act. As this instrument is machinery in nature, no further consultation was undertaken.

Explanation of provisions

Section 1 sets out the name of the instrument, being the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2021.

Section 2 provides that the instrument commences on the day after the instrument is registered on the Federal Register of Legislation.

Section 3 specifies that the instrument is made under the authority of subsection 38-45(2) of the Act with respect to inserting a new determination and 38-45(4) of the Act with respect to varying existing determinations.

Section 4 provides that each instrument that is specified in the Schedule to this instrument is amended as set out in the applicable items of the Schedule.

Schedule 1 provides for amendments to the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016.

Item 1 of Schedule 1 amends the amount specified in column 3 of the table in section 5 of the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 for items 6 and 7 of the table. The effect is to vary the existing maximum payments that may be made under Part 2-2A of the Act for the years 2022 and 2023.

Item 2 of Schedule 1 inserts a new item 8 in the table in section 5 of the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016. The effect is to determine $72,972,000 as the maximum total payments to be made under Part 2-2A in respect of the year 2024.

The revised amounts determined for each of the years 2022 to 2024 reflects an indexation rate of 0.9 per cent. This rate is consistent with the rate used for other grants under 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 PAYMENTS FOR INDIGENOUS STUDENT ASSISTANCE GRANTS) AMENDMENT DETERMINATION 2022

 

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

 

This instrument amends the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 to revise the maximum total payments that may be made under Part 2-2A of the Higher Education Support Act 2003 (the Act) in respect of the years 2022 to 2024.

 

Human rights implications

 

This instrument is mechanical in nature as it determines the maximum total payments that may be made under Part 2-2A of the Act. As such, this instrument does not engage any human rights.

 

However, this instrument does enable grants under Part 2-2A of the Act to be made to higher education providers. In this respect, the instrument facilitates the promotion of the right to education under Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the right of equality and non-discrimination under Articles 2, 16, and 26 of the International Covenant on Civil and Political Rights (ICCPR), Article 2 of the ICESCR, and Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

 

Right to education

 

Article 13 of the ICESCR, recognises the ‘right of everyone to education.’

 

This instrument facilitates the promotion of the right to education as it enables grants to be made to higher education providers. The purposes of the grants are to assist Indigenous students to undertake higher education and to increase the number of Indigenous students enrolling in, progressing in, and completing courses leading to higher education awards.

 

The instrument also provides for the maximum total payments that may be made to higher education providers under Part 2-2A of the Act for the years 2022 to 2024, inclusive. This gives higher education providers an indication of the funding that is expected to be available and will allow them to plan ahead for the provision of activities to assist Indigenous students.

 

Right of equality and non-discrimination

The right of equality and non-discrimination is contained in Articles 2, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD.

The right of equality and non-discrimination recognises that all human beings have the right to be treated equally and to not be discriminated against.

To the extent that measures in relation to Indigenous Student Assistance under Part 2-2A of the Act mean Indigenous persons are provided with a different level of assistance to access higher education than other persons, Part 2-2A is intended to be a ‘special measure’ within the meaning of Article 1(4) of the CERD and subsection 8(1) of the Racial Discrimination Act 1975.

While this instrument itself is not a special measure, the instrument facilitates the provision of a special measure. The instrument facilitates the provision of grants to higher education providers to enable them to provide targeted assistance to Indigenous students and allow these students to better access, progress in and complete higher education awards in order to address the disparity in access to, and completion of, higher education as exists between Indigenous persons and other persons.

The requirement for the Minister to determine maximum payments for grants under Part 2‑2A by legislative instrument is also consistent with arrangements under section 41‑45 of the Act for Other Grants under Part 2-3 and under section 46-40 of the Act for Commonwealth Scholarships under Part 2-4. This ensures that grants for Indigenous student assistance are dealt within the same way as grants for non-Indigenous student assistance.

 

Conclusion

The instrument is compatible with human rights.

Minister for Indigenous Australians

 

Overview

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2021 was introduced to revise the total maximum payments to be made under Part 2-2A of the Higher Education Support Act 2003 (the Act) for the years 2022 to 2024. This amendment was made under the authority of the Minister for Indigenous Australians and aims to update the financial limits set by the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016. The legislative instrument facilitates the provision of grants to higher education providers, enabling them to offer targeted assistance to Indigenous students to improve their access, progression, and completion of higher education qualifications. The revised amounts for 2022 to 2024 reflect an indexation rate of 0.9%, consistent with other grants under the Act. This amendment ensures that Indigenous students receive appropriate support and addresses the disparity in higher education outcomes between Indigenous and non-Indigenous Australians. The instrument is compatible with human rights, particularly the right to education as outlined in the International Covenant on Economic, Social and Cultural Rights, and the right of equality and non-discrimination under various international conventions. By providing targeted financial assistance, the instrument aims to help close the gap in higher education participation and completion rates for Indigenous Australians. It ensures that Indigenous students can access and complete higher education awards, thereby promoting equal opportunities in education.

Scope and Application

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2021 is a legislative instrument that amends the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 to revise the total maximum payments to be made under Part 2-2A of the Higher Education Support Act 2003 for the years 2022 to 2024. This instrument is made under the authority of the Minister for Indigenous Australians and is applicable to the Commonwealth of Australia. The instrument facilitates the provision of grants to higher education providers to assist Indigenous students, thereby enabling them to better access, progress in, and complete higher education awards, and to address the disparity in access to, and completion of, higher education between Indigenous persons and other persons. The instrument is compatible with human rights as it enables the promotion of the right to education under the International Covenant on Economic, Social and Cultural Rights and the right of equality and non-discrimination under the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The instrument specifies that the total payments made under Part 2-2A in respect of each of the years 2022 to 2024 must not exceed the amount determined by the Minister in respect of each of those years. The revised amounts determined for each of the years 2022 to 2024 reflect an indexation rate of 0.9 per cent, which is consistent with the rate used for other grants under the Act. The instrument specifies that the instrument commences on the day after it is registered on the Federal Register of Legislation. This instrument is machinery in nature and no further consultation was undertaken. 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.

Key Provisions

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2021 (section 1) amends the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 (sections 3 and 4). The determination varies the total maximum payments for Indigenous Student Assistance Grants for the years 2022 and 2023, and determines a new total maximum payment amount for the year 2024 (Schedule 1, items 1 and 2). The Minister for Indigenous Australians is empowered under section 38-45(2) of the Higher Education Support Act 2003 to make this determination, and under section 38-45(4) to vary an existing determination for a year before the end of that year (section 3). The revised amounts reflect an indexation rate of 0.9 per cent, consistent with the rate used for other grants under the Act. The parties governed by this Act, primarily higher education providers, must ensure compliance with the maximum payments determined by the Minister for Indigenous Australians. This involves adherence to the revised amounts for grants under Part 2-2A of the Higher Education Support Act 2003 for the specified years, as set out in the Schedule to the Amendment Determination 2021. Higher education providers must use these maximum payment amounts as a guideline for planning their activities aimed at assisting Indigenous students in higher education. They must also ensure that their applications for grants are consistent with the determined maximum payments, avoiding any over-claiming that could result in financial penalties or other repercussions. The instrument does not directly impose specific obligations on individuals but rather governs the framework within which higher education providers must operate when applying for and receiving grants. There are no specific offences or penalties outlined within the instrument itself; however, the Act may impose sanctions for misuse of funds or non-compliance with the terms of the grant. Breaches of the Act could lead to civil or criminal consequences, including fines or other penalties as prescribed by the Act. The determination ensures that the maximum payments for grants are clearly defined, which in turn helps mitigate the risk of misuse or over-claiming by higher education providers. The instrument's compatibility with human rights is affirmed in its explanatory statement, which notes that while the instrument itself is mechanical, it facilitates the promotion of the right to education and the right of equality and non-discrimination. This is achieved by enabling grants to higher education providers to assist Indigenous students, thus addressing disparities in access to higher education between Indigenous and non-Indigenous persons. The instrument ensures that Indigenous students receive targeted assistance, aligning with international human rights obligations under the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination.

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Area of Law
Indigenous Peoples & Native Title Law
Education Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
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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.