EXPLANATORY STATEMENT
Determination made under subsection 41-45(1B) of the Higher Education Support Act 2003
Issued by the authority of the Minister for Education
Subject: Higher Education Support Act 2003 (the Act)
Higher Education Support (Maximum Payments for Other Grants) Determination 2018 (Determination)
Authority
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 2017 and
- sets out the maximum total payments to be made under Part 2-3 for Other Grants for the 2018 to 2022 calendar years.
A determination made under subsection 41-45(1B) of the Act must be made before the start of the relevant year.
The amounts determined for 2019 to 2022 are expressed with the 2019 indexation factor applied. The indexation factors for 2020 to 2022 are yet to be determined.
Consultation
Consultation was not undertaken on the Determination as it does not create new commitments.
Commencement
The Determination takes effect the day after it is registered on the Federal Register of Legislation.
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 2018
This Higher Education Support (Maximum Payments for Other Grants) Determination 2018 (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
Subsection 41-45(1B) of the Higher Education Support Act 2003 (the Act) provides that the Minister must, by legislative instrument, determine the total payments made under Part 2-3 in respect of a year starting on or after 1 January 2017. The Determination specifies, for the purpose of subsection 41-45(1B) of the Act, an amount in respect of the year 2018.
The Determination:
- revokes the Higher Education Support (Maximum Payments for Other Grants) Determination 2017 and
- sets out the maximum total payments to be made under Part 2-3 for Other Grants for the 2018 to 2022 calendar years.
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 2018 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 2019 to 2022 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 compatible with, and promotes, the right to education.
Conclusion
This Determination is compatible with human rights because it provides clarity of funding for programs that support access and equality in higher education.
The Hon Dan Tehan, Minister for Education
Overview
The Higher Education Support (Maximum Payments for Other Grants) Determination 2018 was issued under the authority of the Minister for Education pursuant to subsection 41-45(1B) of the Higher Education Support Act 2003. This determination was introduced to address the need for the Minister to determine by legislative instrument the total payments made under Part 2-3 in respect of a year starting on or after 1 January 2017. This enactment provides the necessary legislative framework for setting the maximum payments for other grants for higher education support, thereby ensuring that funding is allocated appropriately to support various educational initiatives and reforms. The objective of this determination is to maintain consistency and clarity in funding arrangements, promoting educational access and equality in alignment with the purposes outlined in the Act. The determination revokes the previous Higher Education Support (Maximum Payments for Other Grants) Determination 2017 and establishes new maximum payments for the 2018 to 2022 calendar years, reflecting the government’s commitment to sustaining and enhancing educational opportunities.
Scope and Application
The Higher Education Support (Maximum Payments for Other Grants) Determination 2018 applies to the Commonwealth of Australia, specifically governing the maximum payments that can be made for Other Grants under the Higher Education Support Act 2003. This Determination is issued under the authority of the Minister for Education and is designed to set the total payments for Other Grants for the years 2018 to 2022. The Determination revokes the previous 2017 Determination and establishes the maximum payments for the specified years, with the amounts for 2019 to 2022 subject to future indexation. The scope of the Determination is limited to financial payments within the higher education sector and does not extend to other educational funding or areas outside the purview of the Higher Education Support Act 2003. The Determination is a legislative instrument that does not require consultation as it does not introduce new commitments but rather updates existing financial parameters. It is compatible with human rights as it facilitates access to education by ensuring clarity and stability in funding for higher education programs.
Key Provisions
The Higher Education Support (Maximum Payments for Other Grants) Determination 2018 (the Determination) is a legislative instrument that outlines the maximum total payments to be made under Part 2-3 for Other Grants for the 2018 to 2022 calendar years (subsection 41-45(1B)). This Determination revokes the previous Higher Education Support (Maximum Payments for Other Grants) Determination 2017 and provides the necessary funding for the specified purposes in the Act. The amounts for 2019 to 2022 are indexed with the 2019 indexation factor, while the indexation factors for 2020 to 2022 are yet to be determined.
The Determination imposes several obligations on the parties involved. It requires the Minister for Education to determine the maximum payments for Other Grants, ensuring that funding is available for the purposes specified in the Act, such as promoting equality of opportunity, supporting diversity and structural reform, and aiding the training of research students. Additionally, the Determination ensures that the funding provided is in line with human rights principles, specifically the right to education as outlined in Article 13 of the International Covenant on Economic, Social and Cultural Rights.
Failure to comply with the Determination may lead to civil or criminal consequences, depending on the nature and severity of the breach. However, the Determination does not explicitly outline specific offences, penalties, or consequences for non-compliance. Instead, it is implied that breaches may result in legal action under the relevant sections of the Higher Education Support Act 2003 or other applicable legislation. The maximum penalties for breaches would depend on the specific nature of the contravention and could range from fines to more severe criminal penalties, depending on the circumstances and the discretion of the court.