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 2020 (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 2020 calendar year.
The 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 2019 (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 2020
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 2020 (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 2020 calendar year. The Instrument varies the maximum amounts of all grants for each purpose of grant for the 2020 calendar year.
The List of Maximum Grant Amounts under Division 41 for 2020 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 Portfolio Budget Statements and Portfolio Additional Estimates Statements. All grant determinations are also automatically uploaded to the Department of Education 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.
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 MP, Minister for Education
Overview
The Higher Education Support Act 2003 was enacted to provide a framework for the support of higher education in Australia, including the allocation of government grants to universities and students. The Act was introduced to address the need for a structured and transparent system of funding higher education institutions and their students, ensuring equitable access to higher education and supporting research. Enacted by the Parliament of Australia, the policy objective of the Act is to enhance the quality, accessibility, and affordability of higher education while promoting research and innovation. As part of the Act, the List of Maximum Grant Amounts under Division 41 for 2020, a legislative instrument issued by the Minister for Education, sets out the maximum amounts of all grants for each purpose of grant for the 2020 calendar year, ensuring the transparent allocation of funds in support of the Act's objectives. This instrument is compatible with human rights, particularly the right to education, by providing clear funding for programs that support access and equality in higher education and research.
Scope and Application
The Higher Education Support Act 2003 (the Act) applies to the preparation and administration of grants within the Australian higher education sector. The Act encompasses entities such as educational institutions, research organisations, and individuals or entities engaged in higher education-related activities, including the provision of student support services. It governs the conduct and transactions involving the allocation and payment of grants intended to support various purposes within the higher education framework, such as promoting access, equity, and research capabilities. The geographic reach of the Act is national, with its application extending across the Commonwealth of Australia, ensuring a uniform approach to higher education funding and support. The Act does not explicitly state exclusions, but it is subject to adjustments through subordinate instruments, such as the List of Maximum Grant Amounts under Division 41 for 2020, which specifies the maximum amounts for grants for the 2020 calendar year. This instrument is prepared in accordance with subsection 41-50(1) of the Act and is compatible with human rights, ensuring clarity in funding for programs that enhance access to higher education and support research activities.
Key Provisions
The Higher Education Support Act 2003 mandates that before the start of each year, the Minister must prepare a list of maximum grant amounts for each purpose of grant specified in the Act (section 41-50(1)). This requirement ensures that funding allocations are clear and transparent for the upcoming year. The List of Maximum Grant Amounts under Division 41 for 2020 (the Instrument) provides the maximum amounts for each purpose of grant for the 2020 calendar year. These maximums are aligned with the total payments determined in the Higher Education Support (Maximum Payments for Other Grants) Determination 2019 (section 41-45). This alignment ensures that the maximum grant amounts are consistent with the total payments determined under the relevant sections of the Act.
Entities and individuals governed by the Act must adhere to the maximum grant amounts specified in the Instrument. This requirement ensures that all funding allocations for the specified purposes are within the prescribed limits, thereby maintaining the integrity and financial viability of higher education programs. Transparency is maintained through the publication of allocations in the Education Portfolio Budget Statements and Portfolio Additional Estimates Statements, and all grant determinations are uploaded to the Department of Education website, ensuring accessibility and accountability.
Breaching the maximum grant amounts specified in the Instrument can lead to various consequences. The Act does not explicitly state the penalties for exceeding these maximums; however, it is reasonable to infer that any overpayment could result in financial penalties or the requirement to repay excess funds. The Act and related administrative procedures would need to be consulted for precise details on the consequences of such breaches. The overarching intent is to ensure compliance with the funding limits to maintain the sustainability and fairness of the higher education funding system.