EXPLANATORY STATEMENT
Determination made under section 41-45 of the Higher Education Support Act 2003
Issued by the authority of the Minister for Education and Training and the Minister for Indigenous Affairs
Subject: Higher Education Support Act 2003
Higher Education Support (Maximum Payments for Other Grants) Amendment Determination 2015 (No.1)
Authority
Subsection 41-45(1A) of the Higher Education Support Act 2003 (the Act) provides that the Minister may, by legislative instrument, determine the total payments made under Part 2-3 of the Act in respect of a year starting on or after 1 January 2013 but before 1 January 2017.
The Higher Education Support (Maximum Payments for Other Grants) Amendment Determination 2015 (No.1) (the determination) amends the Higher Education Support (Maximum Payments for Other Grants) Determination 2015 (F2015L00056). Subsection 41-45(1D) of the Act provides that the Minister may, in writing, vary a determination under subsection (1A) or (1B) for a year at any time before the end of that year. Further, 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:
- increases the maximum total payments to be made under Part 2-3 for Other Grants for the 2015 calendar year due to changes in estimates of superannuation payments to New South Wales universities.
Consultation
In accordance with paragraph 18(2)(c) of the Legislative Instruments Act 2003 (LIA), consultation was not undertaken as the determination gives effect to the Government’s decisions in the 2015-16 Budget.
Commencement
The determination is a Legislative Instrument under the LIA. The determination takes effect the day after it is registered on the Federal Register of Legislative Instruments.
Amendment
The determination amends the Higher Education Support (Maximum Payments for Other Grants) Determination 2015 (F2015L00056).
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 Other Grants) Amendment Determination 2015 (No.1)
This Legislative Instrument 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
Subsection 41-45(1A) of the Higher Education Support Act 2003 (the Act) provides that the Minister may, by legislative instrument, determine the total payments made under Part 2-3 of the Act in respect of a year starting on or after 1 January 2013 but before 1 January 2017. Subsection 41-45(1D) of the Act provides that the Minister may, in writing, vary a determination under subsection (1A) or (1B) for a year at any time before the end of that year.
The Higher Education Support (Maximum Payments for Other Grants) Amendment Determination 2015 (No.1) (the determination) amends the Higher Education Support (Maximum Payments for Other Grants) Determination 2015 (F2015L00056) to set out revised maximum total payments to be made under Part 2-3 for Other Grants for the 2015 calendar year.
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.
Under the Act, the Minister has the power to determine a maximum amount payable for Other Grants for the 2015 calendar year that differs from that already prescribed in the table in subsection 41-45(1) of the Act. By doing so, the determination will support the payments of the Other Grants for the purposes specified in the table in section 41-10 of the Act. As the purposes of the Other Grants include the promotion of equality of opportunity in higher education, the support of diversity and structural reform and the support of the training of research students (amongst other purposes) the determination enables access to education and therefore is compatible with human rights.
To the extent that the right to education is engaged, this right is promoted by the determination as the determination aims to improve the integrity of the higher education sector.
Conclusion
This Legislative Instrument is compatible with human rights because it advances the protection of human rights.
The Hon Christopher Pyne MP, Minister for Education and Training
Senator the Hon Nigel Scullion, Minister for Indigenous Affairs