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

Administered by Department of Education

Legislation au F2025L01531 In force Legislative Instrument

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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.

Overview

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2025 was introduced to address the need for setting maximum payments for grants aimed at assisting Indigenous students in higher education. Enacted under the Higher Education Support Act 2003 by the Minister for Education, this legislation seeks to provide clear guidance on the financial support available for Indigenous students over multiple years. The primary objective of this Determination is to ensure that the total payments made to higher education providers do not exceed the specified amounts for the years 2025 to 2028, thereby maintaining financial predictability and enabling higher education institutions to plan accordingly. This approach aligns with other funding mechanisms within the Higher Education Support Act, ensuring a consistent method of grant distribution. The Determination also serves to repeal the previous Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016, updating the financial parameters to reflect current needs and economic conditions, including an indexation rate of 2.4%.

Scope and Application

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2025 applies to the Minister for Education, who is responsible for determining the total maximum payments for grants made to higher education providers under Part 2-2A of the Higher Education Support Act 2003. This Act concerns the provision of grants to higher education providers to assist Indigenous students. The Determination sets out the total maximum payments for grants for the years 2025 to 2028, ensuring that these payments do not exceed the specified amounts. The geographic and jurisdictional reach of this Determination is national, as it applies to higher education providers across Australia. The Determination explicitly excludes other types of grants and scholarships not covered under Part 2-2A. While the Act itself does not specify exclusions, the Determination provides clarity on what is covered by ensuring it only pertains to Indigenous student assistance grants. Any broader application or restrictions on the use of these grants are managed through subordinate instruments, which align with other grant provisions in the Act.

Key Provisions

The Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2025 (the Determination) sets out the maximum amounts of grants that can be paid to higher education providers to support Indigenous students for the years 2025 to 2028, in accordance with subsection 38-45(2) of the Higher Education Support Act 2003 (the Act) (Section 6). The Determination specifies that the total payments made under Part 2-2A of the Act for these years must not exceed the amounts determined (Section 6). For 2025, the maximum payment amount remains unchanged from the previous Determination. For 2026, 2027, and 2028, the amounts have been increased by 2.4% to reflect indexation (Section 6). The Determination also repeals the previous Higher Education Support (Maximum Payments for Indigenous Student Assistance Grants) Determination 2016, which had covered the years 2017 to 2027 (Schedule 1). The Determination imposes specific obligations on the Minister for Education and on higher education providers. The Minister is required to determine the maximum payments for grants under Part 2-2A of the Act by legislative instrument, as per subsection 38-45(2) (Section 3). This requirement is consistent with how other grants under the Act are managed, ensuring uniformity in the administration of grants. Higher education providers must ensure that their grant applications and utilisation of funds are within the limits specified by the Determination. They are also required to use the grants solely for the intended purpose of assisting Indigenous students. The Determination does not explicitly outline offences or penalties for breaches, but the Act itself contains provisions that may apply. For example, if a higher education provider misuses grant funds or exceeds the specified payment limits, they could be subject to penalties under the Act, which might include financial penalties or other enforcement actions. It is important for providers to adhere strictly to the terms set out in the Determination to avoid any potential repercussions. Given that the Determination is a legislative instrument, it was not subject to formal consultation processes. However, its provisions are designed to align with the objectives of the Act and to support the rights to education and non-discrimination, as outlined in international human rights instruments (Explanatory Statement). The compatibility of the Determination with human rights is affirmed, ensuring that it facilitates the provision of equitable educational opportunities for Indigenous students.

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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.