EXPLANATORY STATEMENT
Guidelines issued under section 238-10 of the Higher Education Support Act 2003
Other Grants Guidelines (Education) Amendment (No. 2) 2020
Authority
Section 238-10 of the Higher Education Support Act 2003 (the Act) provides that the Minister may make guidelines for the purposes of the Act. In particular item 8 of the table in subsection 238-10(1) specifies the Minister may make Other Grants Guidelines to give effect to matters under Part 2-3 of the Act. Section 41-15 of the Act provides that the Other Grants Guidelines may specify one or more programs under which grants for particular purposes specified in the table in subsection 41‑10(1) are to be paid.
Section 33(3) of the Acts Interpretation Act 1901 also 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 the power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. The amendment of the Other Grants Guidelines (Education) 2012 by the Schedule to this instrument relies on that provision.
Purpose
The Other Grants Guidelines (Education) Amendment (No. 2) 2020 (Amendment Instrument) amends the Other Grants Guidelines (Education) 2012 (Principal Instrument) to give effect to the Government’s 2020 Higher Education Relief Program (HERP). The HERP was announced by the Hon Dan Tehan MP, Minister for Education and Senator the Hon Michaelia Cash, Minister for Employment, Skills and Small Family Business on 12 April 2020 as part of the Government’s Higher Education Relief Package.
The HERP is a program under which grants can be made to eligible providers for the purpose specified in item 11(a) of the table in subsection 41-10(1) of the Act—grants for activities that assure and enhance the quality of Australia’s higher education sector. HERP grants are aimed at providing financial assistance to eligible higher education providers affected by the COVID-19 pandemic in 2020 for activities to ensure these providers continue to operate during, and after, the pandemic.
The amount of Commonwealth Grant Scheme (CGS) funding a higher education provider is eligible to receive is outlined in Part 2-2 of the Act as the lesser of the relevant maximum basic grant amount (MBGA) and the number of Commonwealth supported places the provider actually provides, multiplied by the relevant CGS Commonwealth contribution amounts. However, the impact of COVID-19 on enrolments may mean that higher education providers could receive considerably less CGS funding than previously anticipated.
A provider’s HERP grant will be equal to their 2020 MBGAs with the CGS loadings (regional, enabling and medical), minus any CGS funding the provider receives for actual 2020 enrolments and any JobKeeper payments a provider has received.
Commencement
The Amendment Instrument commences the day after it is registered on the Federal Register of Legislation.
Availability of merits review
Decisions by the Minister in relation to the payment of grants under the programs contained in the Amendment Instrument will not be subject to merits review for the following reasons.
HERP grants will be provided under Part 2-3 of the Act. Under Part 2-3 of the Act, the Minister has the discretion to:
- approve grants made under Part 2-3 (section 41-20);
- determine the amount of those grants (where the Principal Instrument does not specify an amount) (section 41-30); and
- determine the conditions that attach to the grant (where the Principal Instrument does not determine the conditions) (section 41-25).
Section 206-1 of the Act specifies the types of decisions made under the Act that are reviewable decisions. This is an exhaustive list. Funding decisions made under Part 2-3 of the Act are not specified at section 206-1 as decisions that are reviewable. The Amendment Instrument does not provide the Minister with the power to establish a new review mechanism in addition to the review process available under the Act.
While independent merits review will not be available, the Commonwealth Ombudsman is able to investigate any complaints made in relation to the administration of the HERP, and make recommendations to the Department of Education, Skills and Employment (department).
Consultation
Universities Australia, the peak body for the higher education sector, wrote to the Minister for Education requesting that universities be provided with a guarantee of Commonwealth funding to universities in 2020. On 12 April 2020, the Hon Dan Tehan MP, Minister for Education, and Senator the Hon Michaelia Cash, Minister for Employment, Skills, Small and Family Business, announced a funding guarantee (the HERP) for higher education institutions in 2020 as part of the Government’s Higher Education Relief Package.
In developing the Amendment Instrument, the department had ongoing conversations on the HERP with peak bodies and individual institutions. These stakeholders were supportive of the HERP and how it has been formulated in the Amendment Instrument.
Regulatory impact statement
A regulatory impact statement is not required for the HERP as it was announced in response to the COVID-19 pandemic.
Explanation of provisions
Section 1 provides the name of the Amendment Instrument.
Section 2 provides that the Amendment Instrument commences the day after it is registered on the Federal Register of Legislation.
Section 3 states that the Amendment Instrument is made under section 238-10 of the Act.
Section 4 provides that each instrument specified in a Schedule to the Guidelines is amended or repealed as set out in the applicable Schedule.
Schedule 1 – Amendments
The items contained in Schedule 1 of the Amendment Instrument amend the Principal Instrument.
Item 1 of Schedule 1 inserts the HERP as a new program in Part 5 of Chapter 7—Grants for activities that assure and enhance the quality of Australia’s higher education sector of the Principal Instrument.
New section 7.135 provides that the HERP is a program for the purposes of subsection 41-15(1) of the Act, aimed at assuring and enhancing the quality of Australia’s higher education sector during the COVID-19 pandemic in 2020.
New subsection 7.140.1 states that the objective of the HERP is to provide financial assistance to eligible higher education providers affected by COVID-19 in 2020 for activities that ensure the providers continue to operate during, and after, the pandemic, and for activities specified in the conditions of grant. New subsection 7.140.5 goes on to provide that the purpose of the HERP is to ensure that higher education providers are able to keep operating and employing staff during, and after, the COVID-19 pandemic, and to assure the ability of these providers to continue to provide quality education services.
New section 7.145 sets out the formulae used to calculate an eligible provider’s grant amount under the HERP for the year 2020. There are two formulae: one for Table A providers and one for non-Table A providers. The HERP has colloquially been referred to as the ‘CGS funding guarantee’ for the 2020 grant year.
New section 7.150 provides that, in addition to all other eligibility for the HERP, a provider is only eligible to receive a HERP grant if it has entered into a funding agreement under section 30-25 of Part 2-2 of the Act for the 2020 grant year.
New section 7.155 provides that the recipient of a HERP grant must comply with any conditions of grant imposed by the Minister, as well as the conditions imposed by the Principal Instrument.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Other Grants Guidelines (Education) Amendment (No. 2) 2020
The Other Grants Guidelines (Education) Amendment (No. 2) 2020 (Amendment Instrument) is compatible with the 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 Amendment Instrument
The Amendment Instrument amends the Other Grants Guidelines (Education) 2012 (Principal Instrument) to give effect to the Government’s 2020 Higher Education Relief Program (HERP). The HERP was announced by the Hon Dan Tehan MP, Minister for Education and Senator the Hon Michaelia Cash, Minister for Employment, Skills and Small Family Business on 12 April 2020 as part of the Government’s Higher Education Relief Package.
The HERP is a program under which grants can be made to eligible providers for the purpose specified in item 11(a) of the table in subsection 41-10(1) of the Act—grants for activities that assure and enhance the quality of Australia’s higher education sector. HERP grants are aimed at providing financial assistance to eligible higher education providers affected by the COVID-19 pandemic in 2020 for activities to ensure these providers continue to operate during, and after, the pandemic.
The amount of Commonwealth Grant Scheme (CGS) funding a higher education provider is eligible to receive is outlined in Part 2-2 of the Act as the lesser of the relevant maximum basic grant amount (MBGA) and the number of Commonwealth supported places the provider actually provides, multiplied by the relevant CGS Commonwealth contribution amounts. However, the impact of COVID-19 on enrolments may mean that higher education providers could receive considerably less CGS funding than previously anticipated.
A provider’s HERP grant will be equal to their 2020 MBGAs with the CGS loadings (regional, enabling and medical), minus any CGS funding the provider receives for actual 2020 enrolments and any JobKeeper payments a provider has received.
Human rights implications
Right to education
The Amendment Instrument positively engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 13(2)(c) of the ICESCR provides that ‘higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.’ The Amendment Instrument will directly contribute to this requirement by ensuring eligible providers are able to keep operating, employing staff and providing quality education services during and after the COVID-19 pandemic.
Further, under the ICESCR, States Parties have an immediate obligation "to take steps" (see article 2(1)) towards the full realisation of higher and fundamental education for all those within its jurisdiction. By assisting providers to continue operating during this period, the HERP will also assist students to continue to access higher education at a time when obtaining a tertiary qualification is more important than ever. This constitutes a concrete and targeted step towards the progressive realisation of the right to education in accordance with article 13(2) of the ICESCR which relevantly includes the availability and accessibility of education in all its forms.
Right to work
The Amendment Instrument positively engages the right to work contained in Article 6 of the ICESCR. The ICESCR provides that steps to be taken by a State Party to achieve the full realisation of the right to work includes technical guidance and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental and economic freedoms to the individual.
The objective of the HERP is to provide financial assistance to higher education providers affected by the COVID-19 pandemic and assist them to meet their operating expenses, including the continued employment of staff. This program will contribute to steps expected to be taken by Australia, as a State Party to ICESCR, to achieve the full realisation of the right to work as contained in Article 6 of the ICESCR.
Conclusion
This Amendment Instrument is compatible with human rights because it advances the protection of human rights, including the right to education and the right to work.
Hon Dan Tehan MP, Minister for Education