EXPLANATORY STATEMENT

Issued by the authority of the Minister for Education

Higher Education Support Act 2003

Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2025

AUTHORITY

Part 2-2A of the Higher Education Support Act 2003 (the Act) provides for grants to higher education providers to assist Indigenous students. Grants under Part 2-2A are payable to higher education providers in respect of a year.

Subsection 38-45(1) provides that the total payments made under Part 2-2A in respect of a year must not exceed the amount determined by the Minister under subsection 38-45(2) 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. The note under subsection 38-45(2) clarifies that a single legislative instrument may determine amounts for multiple years.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that, 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. The repeal of the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 (the Former Instrument) by the Schedule to the Instrument relies on that provision.

PURPOSE AND OPERATION

The purpose of the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2025 (the Instrument) is to determine, for the purposes of subsection 38-45(2) of the Act, the total maximum payments for grants paid to higher education providers to assist Indigenous students, for the years 2025, 2026, 2027 and 2028. The amount determined for 2025 is the same amount determined in the Former Instrument. The amounts determined for 2026, 2027 and 2028 have been increased to reflect the application of an indexation rate of 2.4% for the year 2026.

Determining maximum amounts for multiple years is considered appropriate to give higher education providers an indication of the funding that is expected to be available. The requirement for the Minister to determine maximum payments for grants under Part 2-2A by legislative instrument is 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.

The Instrument also repeals the Former Instrument, which previously specified the maximum amounts for the years 2017 to 2027.

COMMENCEMENT

The Instrument will commence on the day after the instrument is registered on the Federal Register.

CONSULTATION

As the Instrument is machinery in nature, no consultation was undertaken.

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) Determination 2025

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2025 (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 Legislative Instrument

The purpose of the Instrument is to determine, for the purpose of subsection 38-45(2) of the Higher Education Support Act 2003 (the Act), the total maximum payments for grants paid to higher education providers to assist Indigenous students under Part 2-2A of the Act, for the years 2025, 2026, 2027 and 2028. The amount determined for 2025 is the same amount determined in the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016 (Former Instrument). The amounts determined for 2026, 2027 and 2028 have been increased to reflect the application of an indexation rate of 2.4% for the year 2026.

Determining maximum amounts for multiple years is considered appropriate to give higher education providers an indication of the funding that is expected to be available. The requirement for the Minister to determine maximum payments for grants under Part 2-2A by legislative instrument is 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.

The Instrument also repeals the Former Instrument, which previously determined the maximum amounts for the years 2017 to 2027.

Human rights implications

The Instrument engages:

• the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
• the rights to 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(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 Instrument facilitates the promotion of the right to education as it enables grants to be made to higher education providers, specifically for the purpose of assisting Indigenous students to undertake higher education and to increase the number of Indigenous students enrolling in, progressing in, and completing courses of study leading to higher education awards.

Rights to equality and non-discrimination

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

The rights to equality and non-discrimination recognise 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 Higher Education Support 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 the 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 them 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 with in the same way as grants for non-Indigenous student assistance.

Conclusion

The Instrument is compatible with human rights because it supports the right to education and rights to equality and non-discrimination.

Minister for Education, the Hon Jason Clare MP

HIGHER EDUCATION SUPPORT (MAXIMUM PAYMENTS FOR INDIGENOUS STUDENT ASSISTANCE GRANTS) DETERMINATION 2025

EXPLANATION OF PROVISIONS

Section 1: Name

1.  This is a formal provision specifying the name of the instrument as the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2025 (the Instrument).

Section 2: Commencement

2.  This section provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.

Section 3: Authority

3.  This section provides that the Instrument is made under subsection 38-45(2) of the Higher Education Support Act 2003 (the Act).

Section 4: Definitions

4.  This section defines the term ‘Act’ to mean the Higher Education Support Act 2003.

Section 5: Schedules

5.  This section provides that each instrument that is specified in a Schedule to the Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Instrument has effect according to its terms.

Section 6: Determination of Maximum Payments

6.  This section determines the maximum total payments that may be made under Part 2-2A of the Act in respect of the years 2025, 2026, 2027 and 2028, for the purposes of subsection 38-45(2) of the Act.

7.  The section has the effect that the total payments made under Part 2-2A in respect of the years 2025 to 2028 must not exceed the payment amount that is specified for those years.

8.  The amounts reflect an indexation rate of 2.4%, which is consistent with the rate used for other grants under the Act.

Schedule 1: Repeals

9.  Schedule 1 repeals the Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016, which previously determined the maximum total payment amounts for each year from 2017 to 2027.