Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2023

Administered by Department of the Prime Minister and Cabinet

Legislation au F2024L00066 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 2023

Purpose

This instrument varies the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 (the 2016 Determination) 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 2024 to 2025. This instrument also amends the 2016 Determination to determine a new total maximum payment amount in respect of the year 2026.

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 legislative note to subsection 38‑45(2) clarifies that 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.

Impact Analysis

The Office of Impact Analysis has advised that an Impact Analysis is not required for this instrument (OIA23-05888).

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 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 2023.

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 subsection 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 2016 Determination.

Item 1 of Schedule 1 amends the amount specified in column 3 of the table in section 5 of the 2016 Determination for items 8 and 9 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 2024 and 2025.

Item 2 of Schedule 1 inserts a new item 10 in the table in section 5 of the 2016 Determination. The effect is to determine $81,417,049 as the maximum total payments to be made under Part 2-2A in respect of the year 2026.

The revised amounts determined for each of the years 2024 to 2026 reflects an indexation rate of 7.79 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 2023

 

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 2024 to 2026.

 

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 2024 to 2026, 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 First Nations 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 ICERD.

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 ICERD 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 First Nations 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 2023 was enacted to revise the total maximum payments that can be made under Part 2-2A of the Higher Education Support Act 2003 for the years 2024 to 2026. This amendment was introduced to adjust the financial limits for grants aimed at supporting Indigenous students in higher education, reflecting an indexation rate of 7.79 per cent consistent with other grants under the Act. The determination is made under the authority of the Minister for Indigenous Australians, who is responsible for ensuring these grants are effectively managed to support Indigenous students. The primary policy objective of this amendment is to facilitate increased access to higher education for Indigenous students by providing higher education providers with a clear understanding of the funding available for planning purposes, thereby helping to address the disparity in educational outcomes between Indigenous and non-Indigenous Australians. The instrument is designed to be mechanical in nature, focusing solely on determining the financial limits for these grants, and does not directly engage any human rights. However, by enabling grants to be made to higher education providers, it facilitates the promotion of the right to education and the right of equality and non-discrimination, particularly for Indigenous students. The revised amounts reflect an inclusive approach to ensuring that Indigenous students have equitable access to higher education opportunities, aligning with international human rights standards.

Scope and Application

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2023 amends the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 to adjust the total maximum payments that may be made under Part 2-2A of the Higher Education Support Act 2003 for the years 2024 to 2026. The determination applies to Indigenous students in higher education, providing grants to higher education providers to assist these students. The revised maximum payments are designed to index at a rate of 7.79 per cent, aligning with other grant rates under the Act. This instrument is made under the authority of the Minister for Indigenous Australians, reflecting a commitment to increasing the number of Indigenous students enrolling in, progressing through, and completing higher education courses. The instrument applies nationally as it pertains to Commonwealth legislation. The instrument is made by legislative instrument under the Higher Education Support Act 2003 and commences on the day after registration on the Federal Register of Legislation. No further consultation was required as this instrument is considered machinery in nature. The instrument does not impose any exclusions or exemptions but determines specific financial thresholds for maximum payments, facilitating better financial planning for higher education providers. The application of the Act can be extended or restricted through subordinate instruments, though the current determination does not specify any such extensions or restrictions. The instrument is compatible with human rights, enabling the promotion of the right to education and equality and non-discrimination, as it facilitates the provision of grants to assist Indigenous students in higher education.

Key Provisions

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Amendment Determination 2023 (the Determination) primarily revises the total maximum payments for Indigenous Student Assistance Grants under Part 2-2A of the Higher Education Support Act 2003 for the years 2024 to 2026 (sections 1, 4). Specifically, it amends the amounts specified in the 2016 Determination to reflect an indexation rate of 7.79%, bringing the total maximum payments for 2024 to $48,204,200, for 2025 to $51,163,900, and for 2026 to $54,322,700 (Schedule 1, items 1 and 2). This aligns the Indigenous Student Assistance Grants with other grants under the Act. The Determination is made under the authority of the Act, specifically subsections 38-45(2) and 38-45(4), and it comes into effect on the day after it is registered on the Federal Register of Legislation (sections 2, 3). The Determination imposes obligations on the Minister for Indigenous Australians to determine and vary the maximum total payments for Indigenous Student Assistance Grants (section 3). This includes setting the amount for each specified year and the authority to adjust these amounts if necessary. The Minister must ensure that the total payments do not exceed the specified amounts for each year, thereby providing clarity and predictability for higher education providers in their planning and budgeting for Indigenous student support activities. Breaches of the Determination, such as exceeding the specified maximum payments for any year, could result in non-compliance with the Act. While the Determination itself does not specify penalties, the Act provides mechanisms for enforcement, which could include civil or administrative penalties. The specific consequences for non-compliance would be determined under the relevant sections of the Higher Education Support Act 2003, which might include financial penalties or other corrective measures to ensure adherence to the determined payment limits. This Determination is compatible with human rights as it facilitates the provision of grants to higher education providers, enabling them to offer targeted assistance to Indigenous students. This aligns with 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 various international instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). By providing a predictable funding framework, the Determination supports the goal of increasing the number of Indigenous students who enrol in, progress through, and complete higher education courses.

Legal classification tags

Area of Law
Education Law
Instrument
Legislative Instrument
Concepts
Commencement Provisions
Licensing & Registration
Rights & Protections
Catchwords
Right to education
Right of equality and non-discrimination

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.