EXPLANATORY STATEMENT
List prepared under subsection 41-50(1) of the Higher Education Support Act 2003
Issued by the authority of the Minister for Education
Subject: Higher Education Support Act 2003 (the Act)
List of Maximum Grant Amounts under Division 41 for 2019 (the Instrument)
Authority
Subsection 41-50(1) of the Act provides that before the start of a year, the Minister must, by legislative instrument, cause a list to be prepared setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41-10 of the Act.
Purpose
The Instrument sets out:
- each purpose of grant specified in the table in section 41-10 of the Act
- the maximum amounts of all grants for each purpose of grant for the 2019 calendar year.
By comparison to the List of Maximum Grant Amounts under Division 41 for 2018, this Instrument provides that the maximum amount set out for each purpose of grant is the same amount as the total payments determined in the Higher Education Support (Maximum Payments for Other Grants) Determination 2018 (made under section 41-45 of the Act).
Consultation
Consultation was not undertaken on the Instrument as it does not create new commitments, but implements Government decisions already announced.
Commencement
The Instrument is a Legislative Instrument under the Legislation Act 2003. The Instrument 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
List of Maximum Grant Amounts under Division 41 for 2019
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 41-50(1) of the Higher Education Support Act 2003 (the Act) provides that before the start of a year, the Minister must, by legislative instrument, cause a list to be prepared setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41-10 of the Act.
The List of Maximum Grant Amounts under Division 41 for 2019 (the Instrument) sets out each purpose of grant specified in the table in section 41-10 of the Act as well as the maximum amounts of all grants for each purpose of grant for the 2019 calendar year. The Instrument varies the maximum amounts of all grants for each purpose of grant for the 2019 calendar year.
The current List of Maximum Grant Amounts under Division 41 for 2018 pursuant to subsection 41-50(1) of HESA sets a maximum dollar amount corresponding to each purpose of grant listed in section 41-10. The List of Maximum Grant Amounts under Division 41 for 2019 specifies that the maximum amount for each purpose of grant is the same amount as the total payments determined in the relevant section 41-45 instrument.
There is no reduction in the transparency of program funding. Allocations for each individual grant are published in the Education and Training Portfolio Budget Statements and Portfolio Additional Estimates Statements. All grant determinations are also automatically uploaded to the Department of Education and Training website in the course of making payments.
Human rights implications
Right to Education
The Instrument engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights.
The Instrument provides for an increase to the maximum amount which is payable by the Commonwealth in relation to item 6 of the table in section 41-10 of the Act which concerns grants to assist with the cost of higher education providers’ superannuation liabilities. The Instrument also provides for increases to the maximum grant amounts for national institutes and programs to support higher education institutions’ research capabilities. To the extent that the right to education is engaged, this right is promoted as the Instrument provides clarity of funding for programs that support access and equality in higher education and research.
As the purpose of the grants include the promotion of equality of opportunity in higher education and the support of the training of research students (amongst other purposes) the Instrument engages and promotes the right to education.
The maximum payment amounts are capped having regard to reasonable, necessary and proportionate constraints on spending. The Instrument is compatible with, and does not impermissibly limit, the right to education.
Conclusion
The Instrument is compatible with human rights because it provides clarity of funding for programs that support the financially viable provision of higher education, including research, or enhance access to higher education.
The Hon Dan Tehan, Minister for Education
Overview
The Higher Education Support Act 2003, enacted to provide a legislative framework for financial support to higher education institutions, includes provisions for setting maximum grant amounts for specific purposes. Under subsection 41-50(1), the Minister for Education is required to prepare a list before the start of each year, detailing the maximum grants payable for each purpose of grant outlined in section 41-10 for the following year. The List of Maximum Grant Amounts under Division 41 for 2019, issued by the authority of the Minister, sets out these maximum amounts for the 2019 calendar year, reflecting the total payments determined in the Higher Education Support (Maximum Payments for Other Grants) Determination 2018. This legislative instrument ensures consistency in funding allocations for higher education purposes and maintains transparency through publication in budget statements and on the Department's website. The Instrument is compatible with human rights, particularly the right to education, as it promotes access and equality in higher education and research by providing clear funding frameworks.
Scope and Application
The List of Maximum Grant Amounts under Division 41 for 2019, a legislative instrument issued under the Higher Education Support Act 2003, specifies the maximum grant amounts for various purposes of grants for the 2019 calendar year, as required by subsection 41-50(1) of the Act. This instrument applies to the Commonwealth Government's grants for higher education support, thereby impacting institutions, students, and educational entities involved in higher education and research within Australia. The Act's jurisdiction is Commonwealth-wide, impacting educational institutions and students across all states and territories in Australia. The instrument maintains the maximum grant amounts for each purpose of grant as specified in the Higher Education Support (Maximum Payments for Other Grants) Determination 2018, ensuring continuity in funding levels for higher education support programs. The legislative instrument is compatible with human rights, particularly the right to education, by providing clear and stable funding parameters that support access to higher education and research capabilities.
The Higher Education Support Act 2003, which this instrument supplements, extends its application through subordinate instruments, such as the Higher Education Support (Maximum Payments for Other Grants) Determination 2018. These instruments help manage and specify the financial parameters for various educational grants, ensuring they align with broader government policy objectives. This legislative approach provides a structured framework for the administration of higher education grants, maintaining transparency and accountability in the allocation of educational funding across the nation.
Key Provisions
The Higher Education Support Act 2003 (HESA) mandates that the Minister for Education must, before the start of each year, prepare a list of maximum grant amounts for the upcoming year, in accordance with subsection 41-50(1) of the Act (paragraph 1). This requirement is to ensure that there is a clear and pre-determined cap on the financial support that can be provided for specific purposes, as outlined in the table in section 41-10 of the Act (paragraph 2). The List of Maximum Grant Amounts under Division 41 for 2019, as specified in this legislative instrument, delineates these maximum amounts for each purpose of grant for the 2019 calendar year (paragraph 3). This list ensures consistency with the total payments determined in the Higher Education Support (Maximum Payments for Other Grants) Determination 2018, which was made under section 41-45 of the Act (paragraph 4).
The Act imposes several obligations on the parties involved. Firstly, the Minister for Education is required to ensure that the list of maximum grant amounts is prepared and published before the start of each year (paragraph 5). This obligation ensures that all stakeholders are aware of the financial limits that govern the provision of grants in the upcoming year (paragraph 6). Furthermore, the Act mandates that the maximum payment amounts be set in a manner that reflects reasonable, necessary, and proportionate constraints on spending (paragraph 7). This ensures that the funding allocations are both fiscally responsible and aligned with the broader objectives of the Act, which include promoting equality and access in higher education (paragraph 8).
The Act does not explicitly outline specific offences or penalties for breaches of its provisions in the context of the List of Maximum Grant Amounts. However, the legislative framework within which this instrument operates, including the Legislation Act 2003 and the Human Rights (Parliamentary Scrutiny) Act 2011, provides a broader context for potential consequences of non-compliance (paragraph 9). Any failure to adhere to the requirements of the Act could potentially lead to administrative or legal repercussions, although the specific penalties would depend on the nature and severity of the breach (paragraph 10). The compatibility statement assures that the Instrument does not impermissibly limit the right to education, ensuring that it remains within the bounds of human rights obligations (paragraph 11).