Other Grants Guidelines (Education) Amendment (No. 3) 2020

EXPLANATORY STATEMENT

Guidelines issued under section 238-10 of the Higher Education Support Act 2003

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. 3) 2020 (Amendment Instrument) amends the Other Grants Guidelines (Education) 2012 (Principal Instrument) to implement aspects of the Job-Ready Graduates Package (the Package), announced by the Minister for Education, the Hon Dan Tehan MP, on 19 June 2020, and to give effect to amendments to the Act made by the Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Act 2020 (the Job-Ready Graduates Act). Key changes to the Principal Instrument include:

establishing the Indigenous, Regional and Low Socio-Economic Status Attainment Fund (IRLSAF);
establishing the National Priorities and Industry Linkage Fund (NPILF);
establishing the Higher Education Continuity Guarantee (HECG); and
making editorial and other minor amendments.

The IRLSAF is a program under which grants can be made to eligible providers for the purpose specified in item 1 of the table in subsection 41-10(1) of the Act—grants to promote equality of opportunity in higher education. The program combines the existing Higher Education Participation and Partnerships Program (HEPPP) in the Principal Instrument (with some minor modifications) with both the regional loading and enabling loading previously contained in the Commonwealth Grant Scheme Guidelines 2012 (CGS Guidelines) and now referred to as the Regional Loading Program and Enabling Loading Program, and includes the National Priorities Pool Program and the new Regional Partnerships Project Pool Program. Each component of the IRLSAF is a program for the purposes of the Act.

The NPILF is a program under which grants can be made to eligible providers for the purpose specified in item 13 of the table in subsection 41-10(1) of the Act—grants to encourage higher education providers to engage with industry. Grants made under the NPILF are aimed at encouraging universities to engage with industry to increase the amount of work integrated learning across disciplines and the number of STEM-skilled graduates, as well as improving employment outcomes for graduates.

The HECG 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. HECG grants are aimed at ensuring eligible providers are able to keep operating, employing staff, and providing quality education services in the aftermath of COVID-19.

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.

Grants under the relevant programs 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.

Further, the decision to make a grant to an eligible provider under the relevant program relates to the allocation of a finite resource, noting there is a limited amount of funding provided for each of these programs. Overturning a decision to make a grant to one provider could affect a grant that has already been made to another provider. The Administrative Review Council has recognised it is justifiable to exclude merits review in relation to decisions of this nature (see sections 4.11 to 4.19 of the guidance document What decisions should be subject to merit review?).

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 relevant program, and make recommendations to the Department of Education, Skills and Employment (Department).

Consultation

A discussion paper outlining the measures in the Package was released on the Department’s website (see: https://www.dese.gov.au/document/job-ready-graduates-discussion-paper) alongside announcement by the Minister for Education, the Hon Dan Tehan MP, of the Package at the National Press Club on 19 June 2020.

In developing the Amendment Instrument, the Department had ongoing conversations in relation to the Package with individual universities and peak bodies, including through the Regional Universities Roundtables convened by the Minister for Decentralisation and Regional Education, the Hon Andrew Gee MP. A draft of the Amendment Instrument was also published on the Department’s website (see: https://www.dese.gov.au/job-ready) for consultation on 30 September 2020. The Amendment Instrument has been updated to reflect feedback from the higher education sector.

The Department also consulted with higher education equity stakeholders on the HEPPP component of the IRLSAF. Changes were made to the Amendment Instrument to reflect comments from these stakeholders.

Regulatory impact statement

The measures in the Job-Ready Graduates Act and the Package, including the changes made by the Amendment Instrument, have minimal regulatory impact. The Office of Best Practice Regulation has determined that a regulation impact statement is not required.

Explanation of provisions

Section 1 provides the name of the Amendment Instrument.

Section 2 provides for the commencement of the Amendment Instrument 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 Amendment Instrument is amended as set out in the applicable Schedule.

Section 5 provides that, despite the repeal of Part 3 of Chapter 1 of the Principal Instrument made by Schedule 1 of the Amendment Instrument, that Part, as in force immediately before the commencement of the Amendment Instrument, continues to apply on and after that commencement in relation to a grant made under the HEPPP in respect of the 2020 grant year.

Schedule 1 – Amendments

The items contained in Schedule 1 of the Amendment Instrument amend the Principal Instrument.

Items 1, 2, 3, 4, 5, 6 and 7 of Schedule 1 update definitions contained in section i.ii (Interpretation) of the Principal Instrument for the purposes of ensuring terms defined in the Principal Instrument are accurate.

Item 8 of Schedule 1 repeals Part 3 (Higher Education Participation and Partnerships Program (HEPPP)) of the Principal Instrument, and substitutes this part with a new Part 3 which sets out the details of the Indigenous, Regional and Low Socio-Economic Status Attainment Fund (IRLSAF).

New section 1.40 provides that the IRLSAF is a program for the purposes of subsection 41-15(1) of the Act, aimed at promoting equality of opportunity in higher education by providing grants to providers to encourage the enrolment of Indigenous persons (as defined in the Act), people from regional areas or remote areas, and people from a low SES background.

New section 1.41.1 sets out the five components of the IRLSAF for 2021, 2022 and 2023: the HEPPP, the National Priorities Pool Program (NPPP), the Regional Partnerships Project Pool Program (RPPPP), the Regional Loading Program (RLP), and the Enabling Loading Program (ELP). New section 1.41.5 further provides that each of these components is specified as a separate program for the purposes of subsection 41-15(1) of the Act.

The IRLSAF consolidates a number of smaller programs and loadings (such as the ‘regional loading’ and the ‘enabling loading’ that are currently in the CGS Guidelines) to allow providers to use their own funding more flexibly to best serve the needs of their local community, whether through outreach, building aspirations or enabling courses to prepare students for entry into higher education.

In regional areas, where demand for places is lower, the IRLSAF will allow providers to engage more with schools and communities to build aspiration for higher education and help build pathways to improve access, directly responding to a recommendation of the 2019 Provider Category Standards Review.

New section 1.42 sets out extra conditions of eligibility for the different components of the IRLSAF.

Only Table A providers are eligible to receive grants under the HEPPP, NPPP and RPPPP. This is a continuation of existing arrangements, as the vast majority of Australia’s low SES, Indigenous and regional and remote higher education students are enrolled at Table A providers. Directing the funding in this way ensures limited government resources are best directed to have the biggest impact on these disadvantaged groups. Bodies corporate that are in receipt of grants under the Regional University Centres Program are also eligible to receive grants under the RPPPP. It is intended that providing HEPPP funding to these bodies corporate will strengthen the network of Regional University Centres and encourage collaboration with Table A providers

Only Table A providers and the University of Notre Dame Australia (UNDA) are eligible to receive grants under the RLP and ELP. This is to reflect current funding arrangements for the ‘regional loading’ and ‘enabling loading’ under the CGS Guidelines. As a result, there is no change in the method for calculating the grants for the regional loading program and the enabling loading program during the transition period from 2021 to 2023. The Department will work with the higher education sector to co-design the IRLSAF eligibility and criteria from 2024.

New section 1.43 states that the recipient of an IRLSAF grant must comply with any conditions of grant imposed by the Minister, as well as the conditions imposed by the Principal Instrument.

New Division 1 sets out the detail of the HEPPP. The new HEPPP is very similar to the previous HEPPP, with some changes to reflect that it is now a part of the broader IRLSAF program and to broaden the purposes for which grants can be made under the HEPPP. The formal scope of the HEPPP will be broadened to specifically support regional, remote and Indigenous students, in addition to those from low SES backgrounds, and HEPPP funding will be allocated based on each university’s share of low SES students, regional and remote students and Indigenous students

New section 1.44 provides that the objectives of the HEPPP are to promote equality of opportunity in higher education by improving:

(a) outreach to widen aspiration and promote higher education to persons from a low SES background, persons from regional areas and remote areas, and Indigenous persons; and

(b) the extent to which persons from a low SES background, persons from regional areas and remote areas, and Indigenous persons access, participate, remain and succeed in higher education, and obtain higher education awards.

New section 1.45 sets out the total amount of HEPPP funding available to eligible providers for the years 2021, 2022, 2023. This section also clarifies that funding amounts will be adjusted using the method of indexation set out in Part 5-6, Division 198 of the Act, and to take into account the rollover of any grant amounts from previous years under section 41-40 of the Act. Section 1.45.5 states that total HEPPP funding for 2024 and later years will be determined by the Minister.

New section 1.46 provides that grants under HEPPP will be made to eligible providers each calendar year based on the provider’s respective share of domestic undergraduate students enrolled who are Indigenous, from regional areas and remote areas, or from a low SES background.

New section 1.47 sets out the formulae used to calculate an eligible provider’s grant amount under the HEPPP for the years 2021, 2022 and 2023, and for the years 2024 and later years.

New section 1.48 states that providers must spend their HEPPP grants on equity activities that target current and prospective domestic undergraduate students from low SES backgrounds, students from regional areas and remote areas and Indigenous students, and support tailored programs that address the specific disadvantages, as appropriate, faced by the provider’s students, and prospective students, from low SES backgrounds, regional areas and remote areas, and Indigenous populations.

New section 1.49 prohibits providers from spending HEPPP grants on infrastructure, or on general facilities and services that are not for the principal benefit of Indigenous students, students from regional areas and remote areas, or students from a low SES background.

New section 1.50 sets out a provider’s additional reporting requirements for the purposes of the HEPPP. This section requires a provider to submit reports and financial acquittals to the Department at the times, and in the form, requested by the Department (and to the Department’s satisfaction), and to report to the Department in accordance with any reporting requirements set out in the Evaluation Framework specified by the Department.

Division 2 sets out the details of the NPPP. The NPPP is a new program.

New section 1.51 provides that the objectives of the NPPP are to provide grants to higher education providers to conduct research projects and trial initiatives designed to:

(a) inform future equity policy development and equity practice nationally and at an institutional level;

(b) help increase the number of persons from a low SES background, persons from regional areas and remote areas, and Indigenous persons who aspire to, access, participate in, remain in, and succeed in higher education; and

(c) help increase the number of persons from a low SES background, persons from regional areas and remote areas, and Indigenous persons who obtain higher education awards.

New section 1.52 states the total amount of available funding each year for the NPPP. This amount will not be indexed under Part 5-6 of the Act.

New section 1.53 states that NPPP grants must address at least one of the following priority areas for funding:

(a) research that builds the evidence base that informs equity policy and practice;

(b) trials of innovative approaches to equity policy and practice;

(d) responses to emerging priorities that will maximise equity student outcomes.

New Division 3 sets out the details of the RPPPP. The RPPPP is a new program.

New section 1.54 provides that the objectives of the RPPPP are to provide grants to higher education providers to:

(a) assist providers to link with other providers, schools, vocational education and training (VET) providers and community organisations to develop and implement outreach initiatives in regional areas and remote areas;

(b) support collaboration between Table A providers to ensure a coordinated approach to identifying and engaging with appropriate stakeholders;

(c) direct resources to most effectively target regional areas and remote areas where aspirations to enter higher education are low and where matriculation to higher education is poor; and

(d) facilitate research and collaboration in the higher education sector and support an ongoing nationally coherent response to issues and barriers faced by students from regional areas and remote areas.

New section 1.55 states the total amount of available funding each year for the RPPPP. This amount will be indexed using the method of indexation set out in Part 5-6 of the Act.

New Division 4 sets out the details of the RLP. The RLP is a new program that replaces the existing ‘regional loading’ currently provided under the Act and the CGS Guidelines. Consolidating this funding with other funding provided under similar programs and loadings into the IRLSAF will streamline funding for providers into one umbrella program, making funding arrangements less complex for providers. The wording of the RLP is very similar to the wording that appeared in Chapter 4 of the CGS Guidelines with modifications to reflect its new status as a grants program under Part 2-3 of the Act.

New section 1.56 provides that the objective of the RLP is to promote equality of opportunity in higher education by providing additional funding to eligible higher education providers to assist those providers to offset the disparity in costs and revenue of regional campuses in comparison with major city campuses.

New section 1.57 states that, as an extra condition of eligibility to receive an RLP grant in relation to a particular campus, a provider’s average student load for that campus must be a minimum of 50 internal and multi-modal Commonwealth supported student equivalent full time study load (EFTSL). The section also provides that, for the RLP, the average student load at Batchelor Institute of Indigenous Tertiary Education is considered as part of the Commonwealth supported student load at Charles Darwin University. Section 1.57 uses very similar wording to the wording used for the ‘regional loading’ in Chapter 4 of the CGS Guidelines with modifications to reflect the new status of the RLP as a grants program under Part 2-3 of the Act.

New section 1.58 states how the total RLP funding for 2021 and later calendar year will be calculated (i.e. the amount will be the amount of ‘regional loading’ available for 2020 indexed in accordance with the method in Part 5-6 of the Act).

New section 1.59 sets out the method for calculating a provider’s RLP grant for a calendar year (distribution formula). This includes the method to identify a provider’s average student load and remoteness category for the purposes of applying the distribution formula. The section also contains a detailed explanation of the distribution formula and a method for calculating grants for recently established campuses. The distribution formula is the same formula that was applied when calculating the ‘regional loading’ under the CGS Guidelines.

New Division 5 sets out the detail of the ELP. The ELP is a new program that replaces the existing ‘enabling loading’ currently provided under the Act and the CGS Guidelines. Consolidating this funding with other funding provided under similar programs and loadings into the IRLSAF will streamline funding for providers into one umbrella program, making funding arrangements less complex for providers. The wording of the ELP is very similar to the wording that appeared in Chapter 6 of the CGS Guidelines with modifications to reflect its new status as a grants program under Part 2-3 of the Act, and some minor changes to the formula used to calculate ELP grants.

New section 1.60 provides that the objective of the ELP is to promote equality of opportunity in higher education by providing additional funding to assist providers to enrol students in enabling courses, with a focus on students with educational disadvantage, such as those from a low SES background, regional areas and remote areas, and Indigenous people.

New section 1.61 sets out the method for calculating a provider’s grant under the ELP. The formula set out in this section is the same formula that was applied when calculating the ‘enabling loading’ under the CGS Guidelines, with a minor modification to ensure that providers are only paid an ELP grant based on the number of Commonwealth supported places in enabling courses of study they actually provide in the grant year up to the cap specified by the Department in writing. This allows providers to manage the number of enabling places within their funding envelope and encourages providers to place a greater focus on academic preparedness, learning outcomes and movement of resources towards accredited qualifications that are transferable to other institutions, as highlighted by the Review of the Australian Qualifications Framework.

Item 9 of Schedule 1 inserts a new Part 6, which sets out the details of the Higher Education Continuity Guarantee (HECG), after Part 5 of Chapter 7 of the Principal Instrument.

New section 7.160 provides that the HECG 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 by providing grants to eligible providers in the aftermath of the COVID-19 pandemic.

New section 7.165 provides that the objectives of the HECG are to:

(a) provide financial assistance to eligible providers affected by the COVID-19 pandemic for activities to assist these providers to recover from the pandemic, and for specific activities identified in the conditions of grant; and

(b) ensure that providers are able to keep operating and employing staff in the aftermath of the pandemic, and to assure the ability of these providers to continue to provide quality education services into the future.

New section 7.170 sets out the method for calculating a provider’s grant under the HECG. There are two formulae that will be used: one for Table A providers and one for non-Table A providers. The HECG has colloquially been referred to as the ‘CGS funding guarantee’ for the grant years 2021, 2022 and 2023.

New section 7.175 states that higher education providers that have entered into a funding agreement under section 30-25 of Part 2-2 of the Act for the period 2021 to 2023 are eligible to receive grants under the HECG.

New section 7.180 provides that the recipient of a HECG grant must comply with any conditions of grant imposed by the Minister, as well as the conditions imposed by the Principal Instrument.

Item 10 of Schedule 1 repeals Chapter 8 (Grants to assist with transitional costs of changes to maximum student contribution amounts) of the Principal Instrument, and substitutes this chapter with a new Chapter 8 (Grants to encourage higher education providers to engage with industry). Item 10 also inserts the NPILF as Part 1 of the new Chapter 8.

New section 8.1 provides that the NPILF is a program for the purposes of subsection 41-15(1) of the Act, aimed at encouraging providers to engage with industry to produce job-ready graduates.

New section 8.5 provides that the objectives of the NPILF are to:

(a) increase the number of internships, practicums and other innovative approaches to work integrated learning across all disciplines;

(b) increase the number of STEM-skilled graduates and improve their employment outcomes; and

In support of the Australian Government’s initiative to improve the job-readiness of graduates, the NPILF will specifically encourage universities to build on existing industry engagement activities to design courses that better equip students with the skills they require to thrive in the workforce.

NPILF grants will drive the creation of courses that focus on innovation and provide the skills and knowledge graduates need for a successful future. The NPILF will allow universities to leverage better industry relationships to provide more work-integrated learning opportunities for students and be more responsive to industry needs.

New section 8.10 provides that only Table A providers are eligible to receive grants under the NPILF as the majority of higher education students are enrolled at Table A providers. Directing the funding in this way ensures limited government resources are best directed to have the biggest impact on the most students. These grants will be provided to universities to support them to engage with industry in teaching and research to produce job-ready graduates, and will have a strong focus on STEM and supporting work integrated learning opportunities.

New subsection 8.15.1 provides that the total amount of funding available for grants under the NPILF for the grant years 2021, 2022, 2023 and 2024 is $900 million, with $222 million available in 2021. New subsection 8.15.5 goes on to provide that the total amount of funding available for each of the 2022, 2023 and 2024 grant years will be $222 million adjusted each year from 1 January 2022, using the method of indexation set out in Part 5-6, Division 198 of the Act.

This new section provides a ‘floor’ for funding under the NPILF and has been included to reflect feedback from the higher education sector on the NPILF.

New section 8.20 sets out the method for calculating a provider’s grant under the NPILF. The amount a provider receives will be based on the number of Commonwealth supported places the provider has provided for a grant year (as calculated using the latest year of verified data) in the relevant enrolment band set out in the table at this new section.

New section 8.25 states that NPILF grants must be used to achieve the objectives of the NPILF. This section also provides that the recipient of an NPILF 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. 3) 2020

The Other Grants Guidelines (Education) Amendment (No. 3) 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 implement aspects of the Job-Ready Graduates Package (the Package), announced by the Minister for Education, the Hon Dan Tehan MP, on 19 June 2020, and to give effect to amendments to the Act made by the Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Act 2020 (the Job-Ready Graduates Act). Key changes to the Principal Instrument include:

establishing the Indigenous, Regional and Low Socio-Economic Status Attainment Fund (IRLSAF);
establishing the National Priorities and Industry Linkage Fund (NPILF);
establishing the Higher Education Continuity Guarantee (HECG); and
making editorial and other minor amendments.

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 assisting more people to undertake higher education. In particular, the stated objective of the IRLSAF is promoting equality of opportunity in higher education by providing grants to providers to encourage the enrolment of Indigenous persons, people from regional areas or remote areas, and people from a low SES background. The funding provided under the various programs of the IRLSAF will assist providers to improve access to these traditionally disadvantaged groups of students, thus supporting the right of these students to obtain a higher education qualification.

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. Consolidating existing equity grants into a single program—the IRLSAF—will assist eligible higher education providers by streamlining types of student support aimed at improving access to and equity in higher education.

In addition, the creation of the HECG will assure and enhance the quality of Australia’s higher education sector by ensuring eligible providers are able to keep operating, employing staff, and providing quality education services in the aftermath of COVID-19. By assisting providers to continue operating during this period, the HECG 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(1) of the ICESCR which recognises the “the right of everyone to the opportunity to gain [their] living by work” and that the State will “take appropriate steps to safeguard this right”. Article 6(2) cites “technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual” as steps to be taken by a State Party to achieve the full realisation of the right contained in Article 6(1).

The Amendment Instrument creates the NPILF which is aimed at encouraging providers to engage with industry to produce job-ready graduates. The specific objectives of this program include increasing the number of internships, practicums and other innovative approaches to work integrated learning across all disciplines, and improving the employment outcomes of STEM-skilled graduates. These activities are all aimed at assisting students to obtain qualifications that assist them to get jobs, thus supporting the right of these students to work.

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

Administered by Department of Education

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