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 the Minister for Indigenous Affairs
Subject: Higher Education Support Act 2003
Higher Education Support (Maximum Payments for Other Grants) Determination 2015 (No.1)
Authority
Subsections 41-45(1A) of the Higher Education Support Act 2003 (the Act) provide 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(1B) of the Act provides that the Minister must determine, by legislative instrument, the total payments made under Part 2-3 in respect of a year starting on or after 1 January 2017.
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.
Purpose
The determination:
- revokes the Higher Education Support (Maximum Payments for other Grants) Determination 2015; and
- sets out the maximum total payments to be made under Part 2-3 for Other Grants for the 2016 to 2019 calendar years.
Determinations made under subsection 41-45(1A) and (1B) must be made before the start of the relevant year.
The amounts determined for 2016 to 2019 are expressed with the 2016 indexation factor applied. The indexation factors for 2017 to 2019 are yet to be determined.
Consultation
In accordance with paragraph 18(2)(c) of the Legislative Instruments Act 2003, consultation was not undertaken as the Determination gives effect to the Government’s decisions in the 2015–16 Budget and 2015–16 Mid-Year Economic Fiscal Outlook
Commencement
The Determination takes effect the day after it is registered on the Federal Register of Legislative Instruments.
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)
Determination 2015 (No. 1)
This Higher Education Support (Maximum Payments for Other Grants) Determination 2015 (No.1) (Determination) 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 Determination
Subsections 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(1B) of the Act provides that the Minister must determine, by legislative instrument, the total payments made under Part 2-3 in respect of a year starting on or after 1 January 2017.
The Determination:
- revokes the Higher Education Support (Maximum Payments for other Grants) Determination 2015; and
- sets out the maximum total payments to be made under Part 2-3 for Other Grants for the 2016 to 2019 calendar 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.
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.
The Minister is empowered to determine maximum amounts payable for Other Grants for the 2016 calendar year that differs from that already prescribed in the table in subsection 41-45(1) of the Act. The Minister is required to determine the maximum amounts payable for the 2017 to 2019 calendar years. 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 be compatible with human rights.
The Determination is compatible with the right to education.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
The Hon Simon Birmingham MP, Minister for Education
Senator the Hon Nigel Scullion, Minister for Indigenous Affairs