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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN EDUCATION AMENDMENT BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education, the Honourable Christopher Pyne MP)
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AUSTRALIAN EDUCATION AMENDMENT BILL 2014
OUTLINE
The Australian Education Act 2013 (the Act) came into force on 1 January 2014 and is the
principal legislation for the provision of Australian Government recurrent funding for
schooling, and capital funding for non-government schools.
Funding under the Act is provided to state and territory governments for distribution
to approved authorities for government and non-government schools, block grant
authorities, capital grants authorities, and non-government representative bodies.
Entities in receipt of Commonwealth funding under the Act must meet and maintain
the conditions of financial assistance that are outlined in the Act.
The Bill will allow payment of additional funding in 2014 to schools with large numbers of
Indigenous boarding students from remote areas to meet an identified resourcing shortfall. The
Indigenous Boarding Initiative was announced through the 2014-15 Budget and will provide
approximately $6.8 million in additional funding to eligible schools. The Regulations will
determine a school's eligibility and the amount of funding it will receive under the Initiative.
The Bill will prevent funding cuts to students with disabilities and to other students in some
independent special schools and special assistance schools, that would otherwise occur from 1
January 2015, by ensuring transitional funding arrangements for these schools are consistent
with other schools under the Act.
The Bill will address a number of errors and omissions that occurred during the original
preparation of the Act, which undermine the intended operation of the Act and create funding
and regulatory uncertainty for schools.
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FINANCIAL IMPACT STATEMENT
The Indigenous Boarding Initiative will provide approximately $6.8m (less than 0.05 per cent
of total recurrent schools funding) in additional funding to eligible non-government schools
in 2014-15. This amount is included in the amount identified in the Department of Education
Budget Statements 2014-15 for Programme 2.2: Non-Government Schools National Support,
under the special appropriation for the Australian Education Act 2013 (pp51-52).
The measure preventing funding cuts to certain independent special schools and special
assistance schools from 2015 will result in approximately $2.4m more being paid to those
schools in 2014-15 (less than 0.02 per cent of total recurrent schools funding). This amount
will be reflected in the Mid-year Economic and Fiscal Outlook updates to the Department of
Education Budget Statements 2014-15 for Programme 2.2: Non-Government Schools
National Support, under the special appropriation for the Australian Education Act 2013
(pp51-52).
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Education Amendment Bill 2014
This Bill 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 Bill
The Bill will amend the Australian Education Act 2013 (the Act) to:
1. allow payment of additional funding in 2014 to schools with large numbers of
Indigenous boarding students from remote areas (2014-15 Budget initiative) to meet
an identified resourcing shortfall through a new provision that would also support
future government programmes in schools
2. prevent funding cuts to students with disabilities and to other students in some
independent special schools and special assistance schools that would otherwise occur
from 1 January 2015
3. correct errors and omissions in the existing legislation and provide funding and
regulatory certainty to schools.
Human rights implications
The Bill engages the following human rights:
the elimination of racial discrimination - Articles 2 and 1(4) of the Convention on the
Elimination of all forms of Racial Discrimination
the right to education - Articles 9 and 24 of the Convention on the Rights of Persons
with Disabilities
the right to education - Article 13 of the International Covenant on Economic, Social
and Cultural Rights.
Elimination of all forms of racial discrimination
Schedule 1 to the Bill engages Articles 2 and 1(4) of the Convention on the Elimination of all
forms of Racial Discrimination (CERD). Australia has obligations to eliminate all forms of
racial discrimination under Article 2 of the CERD. However, not all treatment that
differentiates between individuals will amount to discrimination. Article 1(4) of the CERD
provides that, where special measures are taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals in the equal enjoyment of their
human rights, those measures will not amount to racial discrimination.
One of the main objectives of the Australian Education Amendment Bill 2014 is to increase
Commonwealth funding for 2014 for eligible non-government boarding schools, in
accordance with the Government's Indigenous Boarding Initiative announced in the 2014-15
Budget.
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This Initiative recognises the increased cost schools face in relation to providing educational
outcomes for Aboriginal and Torres Strait Islander boarding students from remote or very
remote areas in Australia.
This is a special measure, as it is designed to benefit and ensure the improved educational
attainment of Aboriginal and Torres Strait Islander students in circumstances where those
students are from remote or very remote areas of Australia, and are required to board in order
to obtain equal access to education.
The Bill is compatible with the elimination of all forms of racial discrimination.
Rights of Persons with Disabilities
Schedule 2 to the Bill engages Articles 9 and 24 of the Convention on the Rights of Persons
with Disabilities. Article 9 recognises the right of persons with disabilities to participate fully
in all aspects of life, and Article 24 recognises the right of persons with disabilities to an
inclusive education.
One of the main objectives of the Bill is to ensure that certain approved authorities, which are
approved only in relation to special schools and special assistance schools, do not face a
decrease in Commonwealth funding entitlements from 2015. If the Act was not amended,
certain approved authorities for special schools and special assistance schools would have
faced a decrease in Commonwealth funding from 2015. These schools are now treated in the
same way as other schools under the Act whose approved authority is subject to the
transitional provisions in Division 5 of Part 3.
The measures in the Bill will ensure that students at special schools and special assistance
schools are able to participate fully in all aspects of life and maintain access to an inclusive
education.
The Bill is compatible with the rights of persons with disabilities.
Right to Education
The Bill engages the right to education in Article 13 of the International Covenant on
Economic, Social and Cultural Rights. Article 13 recognises the right of everyone to
education, which is directed towards the full development of the human personality and the
sense of its dignity and to enable all persons to participate effectively in society. It also
recognises the liberty of parents and guardians to choose non-government schools for their
children, provided those schools conform to the minimum educational standards set out by
the Australian Government. The right to education for children is also found in Articles 28
and 29 of the Convention on the Rights of the Child.
In particular, Schedules 1 and 2 to the Bill engage the right to education. One of the main
objectives of the Bill is to increase the amount of Commonwealth funding available in 2014
eligible non-government boarding schools with large numbers of Aboriginal and Torres Strait
Islander boarding students from remote or very remote areas. This measure enhances the right
to education by supporting Indigenous students' to access education.
The Bill will also ensure that schools that transfer between approved authorities do not face
financial disadvantage due to the operation of the transitional provisions in the Act.
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This will ensure schools that transfer between approved authorities continue to receive
correct Commonwealth funding entitlements, thus supporting access to education.
In addition, the Bill ensures that indexation is included in the total amount of capital funding
available for block grant authorities for 2014, thereby ensuring that those authorities have
access to an increased amount of capital funding from 2013 in order to fund capital works at
non-government schools. This promotes the right to education by ensuring that students have
access to facilities that accommodate and enhance their educational opportunities.
The Bill will make a positive contribution to promoting the right to education for students at
Australian schools. As a whole, the Bill engages and promotes the right to education by
providing additional funding to assist with improving educational outcomes for students
attending both government and non-government primary and secondary schools, including
Indigenous students, students educationally disadvantaged because of geographic isolation,
and students with disabilities.
The Bill is compatible with the right to education.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights.
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AUSTRALIAN EDUCATION AMENDMENT BILL 2014
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides that the name of the Bill, when enacted, is the Australian Education
Amendment Act 2014.
Clause 2 - Commencement
Clause 2 of the Bill provides for the commencement of the various provisions of, and
Schedules to, the Bill.
The table in subclause 2(1) has the effect of providing for the following commencement
times:
Matters to commence on the day the Bill receives Royal Assent:
Sections 1 to 3 and anything else in the Bill not otherwise covered by the table.
Matters to commence on the day after the Bill receives Royal Assent:
Schedule 1.
Matters to commence on 1 January 2014:
Schedule 2.
The items in Schedule 2 of the Bill will commence retrospectively. This is necessary to
ensure that the correct Commonwealth funding entitlements for 2014 are calculated for
approved authorities for participating schools, including by ensuring that:
the Commonwealth is only required to pay its share of the total public funding for
approved authorities for participating schools that receive funding above the
schooling resource standard
the correct pro-rating of Commonwealth funding entitlements can be calculated for, as
an example, approved authorities that have one or more participating schools cease to
provide primary or secondary education during 2014
participating schools that move between approved authorities during 2014 are not
financially advantaged or disadvantaged.
Clause 3 - Schedules
This clause provides that any legislation that is specified in a Schedule to the Bill is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other item
in a Schedule to the Bill has effect according to its terms.
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Schedule 1 Amendments commencing on the
day after Royal Assent
Summary
Schedule 1 amends the Australian Education Act 2013 (the Act) to correct errors and
omissions that have become apparent since the introduction of the Act, and to provide a
legislative basis for the Government's Indigenous Boarding Initiative.
Detailed explanation
Grants to States and Territories for schools funding programs
Items 1, 3 to 13, 17 to 20, 29, 30, 42 and 43
Item 19 will insert a new clause 69A in Division 3 of Part 5 of the Act. The purpose of the
new clause is to provide for the establishment of funding programs for schools by regulation
under the Act, and provide the necessary authority for the Commonwealth to make payments
for those programs to states and territories for eligible schools.
New subclause 69A(1) will enable the Minister to determine an amount of financial assistance
for a school for a year if the Minister is satisfied prescribed circumstances apply in relation to
the school for that year. Under section 29 of the Act (as amended by items 9, 10 and 11),
amounts determined under subclause 69A(1) will be paid to states and territories at such times
and in such amounts as the Minister determines, permitting payment of funding by instalment
(including, if relevant, on achievement by funding recipients of specified outcomes,
deliverables or reports). The Minister will also be able to impose conditions relating to the
expenditure of the funding, under subsection 29(4) of the Australian Education Regulation
2013.
A determination under subclause 69A(1), as paid out under section 29 of the Act, will be
supported by the appropriation in section 126 of the Act (see item 42).
In order to ensure appropriate Parliamentary oversight of schools funding programs, the
details of each program needs to be set out in regulations made under section 130 of the Act.
These details will include:
the program's year or years of operation
the eligibility criteria or preconditions for funding (the "prescribed circumstances" for
subclause 69A(1))
matters that the Minister may or must take into account in making a funding
determination under subclause 69A(1)
the amount of funding that may be paid for a school for a year (whether a fixed
amount, a capped amount, or an amount worked out by formula) (see subclauses
69A(2) and (3))
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the total amount of funding available for the program for a year (which could be a
fixed amount, a capped amount, or an amount worked out by formula - including, for
demand-driven programs, the sum of amounts payable for each eligible school) (see
subclause 69A(4)).
A funding determination under subclause 69A(1) is not a legislative instrument (subclause
69A(5)). Subclause (5) is included to assist readers, as a determination is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments Act 2003 in any
case.
It is the Government's intention to have regulations made before the end of 2014 to set out
the eligibility requirements for funding under the Indigenous Boarding Initiative for 2014,
and the calculation of the amounts to which eligible schools are entitled. For 2014, it is
intended that this will be the only prescribed circumstances specified for the purposes of
section 69A.
Items 1, 3, 4, 6, 7, 8, 12, 13, 17, 18, 20 and 29 will make textual amendments to provisions
of the Act relating to funding under Division 3 of Part 5 of the Act, to reflect the addition of
the new clause 69A.
Items 5 and 30 will amend sections 9 and 112 of the Act respectively, to ensure that the
provisions of the Act relating to overpayments and recoverable payments apply to amounts
determined under subclause 69A(1) and paid under section 29 of the Act.
Items 9, 10 and 11 will amend section 29 of the Act to provide for the making of payments
of funding on account of determinations under subclause 69A(1). The addition of paragraph
29(1)(aa) (item 10) will enable the Minister to determine the amounts of payments; the
amendments to section 29 made by items 9 and 11 are consequent on that amendment.
Item 42 will add a new paragraph (c) to section 126 of the Act, so that the standing
appropriation in section 126 covers payments made under new paragraph 29(1)(aa) on
account of determinations under subclause 69A(1). Item 43 makes a consequential
amendment to the text of the note to section 126.
Non-government schools' capital funding amount for 2014
Items 14 to 16
Division 2 of Part 5 of the Act provides for grants of financial assistance to states and
territories for capital expenditure for schools. Subsection 67(2) empowers the Minister to
determine amounts of financial assistance for block grant authorities for capital expenditure
by non-government schools. The annual amount of financial assistance that may be
determined under subsection 67(2) is capped by section 68 of the Act.
Paragraph 68(1)(a) of the Act sets the capital funding cap for 2014 at the "base assistance
amount worked out under subsection 84(2) of the Schools Assistance Act 2008" (SA Act) as
if that subsection had applied for 2014. However, subsection 84(2) of the SA Act calculates a
capital funding cap for a year by multiplying the base assistance amount for the year by an
indexation factor.
10
This indexation factor is missing from the language in paragraph 68(1)(a) of the Act,
resulting in no indexation being applied to the base assistance amount for 2014. In effect, the
capital funding cap for 2014 under paragraph 68(1)(a) of the Act is the same as the capital
funding cap for 2013 under subsection 84(2) of the SA Act.
Item 14 will replace paragraph 68(1)(a) of the Act with a single amount, $134,496,000, as
the limit on the total amount available for capital funding for block grant authorities for 2014.
This item will ensure that the limit on capital funding for block grant authorities for 2014 is
an amount that includes 0.5% indexation from the amount for 2013 ($133,827,000).
The 2014 cap on capital funding for block grant authorities will be indexed in future years
through the mechanism currently set out in subsections 68(2) to (5) of the Act.
Items 15 and 16 will make amendments to section 68 of the Act in order to clarify that the
reference to "base assistance amounts" in subparagraph 68(1)(b)(i) and subsection 68(2) of
the Act are references to those amounts "for a year" (the base assistance amount varying by
indexation from year to year).
Taking action under the Australian Education Act 2013 for non-compliance etc. with
funding agreements made under former schools funding legislation
Items 2 and 21 to 28
Part 8 of the Act enables the Minister to seek repayment of payments made under the Act,
reduce future payments under the Act, or delay future payments under the Act (section 110) in
the event of non-compliance with or breach of the Act (section 108), or where a debt is owed
under the Act or certain former schools funding Acts (section 109).
However, Part 8 of the Act does not properly recognize the role played by funding agreements
under former Acts, so it is not clear that the Minister is able to take action under the Part for a
failure to comply with a funding agreement, or where a debt is owed under a funding
agreement.
Item 25 will insert a new paragraph (g) in section 108 of the Act. This will ensure that if an
approved authority or block grant authority for a non-government school is not complying, or
has not complied, with certain requirements in its funding agreement under the Schools
Assistance Act 2008 (SA Act), the Minister may take action under subsection 110(1) of the
Act in relation to that authority, for example, to delay, reduce, or require repayment of
financial assistance payable to the authority under the Act.
Under the SA Act, the Commonwealth provided financial assistance to states and territories
for non-government schools. Prior to the Minister authorising payment of that financial
assistance, the Commonwealth was required to enter into a funding agreement with the
relevant authority for the school that complied with Division 3 of Part 3 of the SA Act.
The absence of a provision in the Act relating to non-compliance with a funding agreement
under the SA Act was an oversight. This oversight currently limits options for the
Commonwealth to appropriately address such non-compliance.
11
Items 26, 27 and 28 will clarify that if an authority for a non-government school has been
paid an amount in excess of the amount it was entitled to receive under an agreement entered
into under any of the pieces of legislation specified in subparagraphs 109(3)(a)(ii), (iii), (iv) of
the Act, the Minister may take any of the actions specified in subsection 110(1) of the Act in
relation to that authority, for example, to delay, reduce, or require repayment of financial
assistance payable to the authority under the Act.
It was originally intended that subparagraphs 109(3)(a)(ii), (iii), and (iv) would extend to
debts arising under former funding agreements, and these items are necessary to ensure that
the operation of subsection 109(3) reflects the Government's intention.
These items will ensure, for example, that if an authority for a non-government school owes
the Commonwealth a debt under any of these agreements, the recovery of that debt can occur
under the Act.
Items 2, 21, 22, 23 and 24 will make textual amendments to provisions of the Act consequent
on the amendments made by items 25 to 28.
Reviewable decisions under the Australian Education Act 2013
Items 31 to 41
The table at subsection 118(1) of the Act sets out the decisions which are reviewable
decisions under the Act.
If a decision made under the Act is a reviewable decision, then the relevant person for that
decision (the person identified in column 3 of the table at subsection 118(1)) must receive
notice of that decision (see section 119 of the Act), has a right to apply for internal review of
that decision (see section 120 of the Act), and is able to apply to the Administrative Appeals
Tribunal for review in certain circumstances (see section 122 of the Act). Further to this, the
relevant person for certain reviewable decisions must be given a show cause notice prior to
the decision, and be allowed a minimum of 28 days to respond to the show cause notice (see
section 66 of the Australian Education Regulation 2013).
Item 32 will insert a new item in the table at subsection 118(1), to clarify that a decision on
the total entitlement of an approved authority for one or more participating schools for a year,
under subsection 26(4) of the Act, is a reviewable decision. The amendment to item 3 in the
table at subsection 118(1) made by item 31 is consequent on that amendment. These items
will clarify that a decision on the total entitlement of a participating school for a year (item 3
in the table at subsection 118(1)) and a decision on the total entitlement of an approved
authority for one or more participating schools for a year (new item 3A in the table at
subsection 118(1)) are reviewable decisions.
Items 33 to 38 will amend items 8, 11, 14, 17, 20, and 23 in the table at subsection 118(1).
Items 33 to 38 will clarify that setting the date of effect of certain determinations are not
themselves reviewable decisions, if the date is the one applied for by the affected authority or
body. This will ensure that if the date specified in a determination made under the Act is the
same as the date the affected authority or body applied for, then this is not a reviewable
decision, as the determination is merely giving effect to the date specified in the application
of the authority or body.
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Item 39 will repeal item 25 in the table at subsection 118(1) and insert new items 25 and
25A. Item 39 will:
clarify that a decision to temporarily delay payment of financial assistance (paragraph
110(1)(c) of the Act), for example, where an approved authority for a non-government
school has not complied with its reporting requirements under the Australian
Education Regulation 2013, is not reviewable by a state or territory
ensure that a decision to require repayment of financial assistance (paragraph
110(1)(a) of the Act) is reviewable by the authority or body (or former authority or
body) whose interests are affected by the decision.
In relation to clarifying that a decision to temporarily delay payment of financial assistance is
not reviewable by a state or territory:
this decision is required to be made frequently in order to rectify, most commonly,
minor non-compliance by an approved authority for a non-government school with
the Act
this decision, as a matter of practice, is not used to sanction states and territories
authorities or bodies for non-government schools are not able to seek review of a
decision under paragraph 110(1)(c) of the Act
it was not the Government's policy intention that a decision under paragraph
110(1)(c) would be a reviewable decision. However, the breadth of the current item
25 in the table at subsection 118(1) of the Act unintentionally makes it a reviewable
decision for states and territories only
as a result of this, the state or territory, not the non-compliant authority or body for a
non-government school, must be notified of the decision and the reasons for it
(section 119 of the Act)
as a result of this also, the state or territory, not the non-compliant authority or body
for a non-government school, must be given a show cause notice prior to the decision,
and be allowed a minimum of 28 days to respond to the show cause notice (section 66
of the Australian Education Regulation 2013)
the state or territory would have no particular interest in the Commonwealth delaying
payment of financial assistance for an authority or body for a non-government school
and this decision has no adverse impact on the state or territory.
Accordingly, item 39 will ensure that the Government's policy intention in relation to
decisions under paragraph 110(1)(c) of the Act will be given effect.
Items 40 to 41 will clarify, for the avoidance of doubt, that items 26 and 27 in the table at
subsection 118(1) relate to a decision under paragraph 110(1)(b) of the Act (reduction of
payments).
Amendment to the Australian Education (Consequential and Transitional Provisions)
Act 2013
Item 44 will amend subitem 9(2) of Schedule 2 to the Australian Education (Consequential
and Transitional Provisions) Act 2013 (Transitional Act).
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Subitem 9(2) of the Schedule 2 to the Transitional Act currently provides that an approved
authority for a school must have a school improvement framework and a school improvement
plan (as required by paragraph 77(2)(d) of the Act) from 1 January 2015.
Item 44 of the Bill will extend the commencement date of the improvement planning
requirements to 1 January 2016 or such later date determined by the Minister by legislative
instrument made before 1 January 2016. This will allow current consultations with
government and non-government school stakeholders relating to possible adjustments to this
requirement to conclude prior to the requirement coming into effect. Any adjustment would
be legislated in 2015.
Application provisions
Item 45 will ensure, for the avoidance of doubt, that the amendment made by item 25 applies
in relation to a failure to comply with a requirement included in a funding agreement in
accordance with Division 3 of Part 3 of the Schools Assistance Act 2008 that occurs before,
on, or after the commencement of Schedule 1 of the Bill.
Item 46 will ensure, for the avoidance of doubt, that the amendments made by items 26 to 28
apply in relation to an amount paid (in excess of the amount the relevant authority or body
was entitled to receive under an agreement entered into under any of the pieces of legislation
specified in paragraphs 109(3)(a)(ii), (iii), (iv) of the Act) before, on, or after the
commencement of Schedule 1 of the Bill.
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Schedule 2 Amendments commencing on 1
January 2014
Summary
Schedule 2 amends the Australian Education Act 2013 (the Act) to correct errors and
omissions that have become apparent since the introduction of the Act, and to ensure
significant errors in relation to the calculation of Commonwealth funding entitlements for
certain approved authorities are corrected.
The items in Schedule 2 of the Bill have retrospective effect. This is necessary to ensure that
the correct Commonwealth funding entitlements for 2014 are calculated for approved
authorities for participating schools, including by ensuring that:
the Commonwealth is only required to pay its share of the total public funding for
approved authorities for participating schools that receive funding above the
schooling resource standard
the correct pro-rating of Commonwealth funding entitlements can be calculated for, as
an example, approved authorities that have had one or more participating schools
cease to provide primary or secondary education during 2014
participating schools that move between approved authorities during 2014 are not
financially advantaged or disadvantaged.
Detailed explanation
Calculating transitional recurrent funding for approved authorities under Division 5 of
Part 3 of the Australian Education Act 2013
Division 5 of Part 3 of the Act sets out the calculations for recurrent funding for approved
authorities in transition, and specifies when the participating schools those authorities are
approved for have their funding calculated under Division 2 of Part 3 of the Act (the
schooling resource standard) instead. Division 5 of Part 3 contains a number of transitional
formulas that may apply to approved authorities, depending on the old per student amount for
2013, old per student amount for 2014, and new per student amount for 2014 (as determined
or calculated under section 58 of the Act) of those authorities.
In addition, section 62 of Division 5 of Part 3 provides a separate calculation for transitional
recurrent funding for those approved authorities which, on 1 January 2014, are approved only
in relation to one or more special schools or special assistance schools, and to which section
59 of the Act does not apply.
Items 21 and 23 to 27
Section 61 of the Act provides a calculation for working out transitional recurrent funding for
certain approved authorities.
15
Currently, subsection 61(2) of the Act works out an approved authority's annual funding by
multiplying its "old per student amount" for the year by the numbers of students attending the
authority's schools that year. However, the "old per student amount" is an amount that
represents the average per-student funding provided to the approved authority from both
Commonwealth and state or territory governments. There is a separate concept - the "old
Commonwealth per student amount" - which represents the Commonwealth's share of the
"old per student amount".
Thus, the current (and unintended) operation of section 61 results in an approved authority
being entitled to receive an amount representing its total public funding from the
Commonwealth alone.
Item 23 will ensure that this significant error is corrected, by ensuring that transitional
recurrent funding calculated under section 61 only factors the old Commonwealth per student
amount of the approved authority to which section 61 applies. Although item 23 replaces the
whole funding formula in subsection 61(2) of the Act, the only substantive change is to add
the word "Commonwealth" into the first factor in the formula, ensuring the per student
amount in the formula reflects the amount representing the Commonwealth share of the
approved authority's old per student amount.
Item 21 makes a textual amendment to the heading to subsection 61(2) of the Act, reflecting
the change in terminology from "old per student amount" to "old Commonwealth per student
amount".
Items 24, 25 and 26 will ensure that the old Commonwealth per student amount of an
approved authority to which section 61 applies is indexed at the same rate as the current
operation of subsection 61(3).
Item 27 will ensure that the schools an approved authority is approved for will transition to
Division 2 of Part 3 of the Act (the schooling resource standard) when the approved
authority's new Commonwealth per student amount for a year is equal to or more than its old
Commonwealth per student amount for the year. This is to ensure the transition of these
schools is consistent with the Commonwealth funding entitlements payable under section 61
of the Act.
Items 28, 29 and 31 to 34
Section 62 of the Act applies to certain approved authorities only for 2014. Subsection 62(3)
provides that the schools an approved authority (to which section 62 applies) is approved for
will transition immediately to Division 2 of Part 3 of the Act (the schooling resource standard)
from 2015, which will result in a significant decrease in funding for some of those schools.
Section 62 also provides a calculation for working out transitional recurrent funding for
certain approved authorities. As is the case for subsection 61(2) of the Act, currently,
subsection 62(2) of the Act works out an approved authority's annual funding by multiplying
its "old per student amount" for the year by the numbers of students attending the authority's
schools that year. Again, the "old per student amount" is an amount that represents the
average per-student funding provided to the approved authority from both Commonwealth
and state or territory governments, and the "old Commonwealth per student amount"
represents the Commonwealth's share of the "old per student amount. In short, the formula in
subsection 62(2) shares the same error as the formula in subsection 61(2).
16
In order to correct both the errors giving rise to reduction in funding from 2015 and funding
being calculated by reference to the wrong factor, items 28, 29 and 31 to 34 will ensure:
that section 62 continues to apply to an approved authority from 2015 (items 28, 31,
32 and 34)
similar operation as found in section 61 of the Act applies to the transition of schools
to Division 2 of Part 3 (the schooling resource standard) (items 33 and 34)
transitional recurrent funding calculated under section 62 only includes the old
Commonwealth per student amount of the approved authority to which section 62
applies (items 29 and 32). This will ensure that the per student amount reflects an
amount representing the Commonwealth share of the approved authority's old per
student amount
the old Commonwealth per student amount of the approved authority is indexed (item
33).
Subclause 62(2B), item 33, will ensure that the old Commonwealth per student amount of the
approved authority to which section 62 applies is indexed at 3%, or a higher percentage
prescribed by regulation. This will ensure consistency with other indexation arrangements in
the Act.
These items will provide funding certainty for special schools and special assistance schools
by ensuring these schools transition to the schooling resource standard in a more orderly
manner, consistent with other schools.
Item 17 will insert a new paragraph (c) in subsection 58(1) of the Act. This item will ensure
that the Minister can determine an old Commonwealth per student amount for 2013 for each
approved authority to which section 61 or 62 of the Act applies. This item will be required to
give effect to the proposed amendments to sections 61 and 62 of the Act (see items 21, 23 to
27, 28, 29 and 31 to 34).
Item 19 will insert a new subclause 58(6) in section 58 of the Act. This will ensue that a new
Commonwealth per student amount is able to be calculated for a year for each approved
authority to which section 61 or 62 of the Act applies. This item will be required to give effect
to the proposed amendments to sections 61 and 62 of the Act (see items 21, 23 to 27, 28, 29
and 31 to 34).
Item 18 clarifies that subsection 58(5) only applies to working out the amount in subsection
58(4), and will not affect the calculation in proposed subclause 58(6) of the Act (see item 19).
Items 2 to 4 will repeal existing definitions in section 6 of the Act and insert new definitions
for the purposes of the proposed amendments to sections 58, 61 and 62 of the Act (see items
17, 19, 21, 23 to 27, 28, 29 and 31 to 34). These definitions will be necessary in order to give
effect to the defined terms used in the proposed amendments to sections 58, 61 and 62 of the
Act.
Item 10 will make textual amendments to section 31 of the Act relating to the calculation of
transitional recurrent funding under Division 5 of Part 3 of the Act, to reflect the amendments
to section 61 of the Act (see items 21 and 23 to 27).
Items 1 and 11 will make textual amendments to provisions of the Act relating to the
proposed amendments to section 62 of the Act (see items 28, 29 and 31 to 34).
17
Amendments relating to movement of a participating school which existed on 1 January
2014 between approved authorities
Items 12 to 16, 20, 22, 30 and 35
Division 5 of Part 3 of the Act sets out the calculations for recurrent funding for approved
authorities in transition. However, Division 5 of Part 3 only calculates recurrent funding for
approved authorities, and not the individual participating schools those approved authorities
are approved for, based on a per student amount determined for each approved authority.
One consequence arising from the operation of Division 5 of Part 3, is that when a
participating school which existed on 1 January 2014 moves between approved authorities
subject to Division 5 of Part 3, a different per student amount will apply to the students
counted at that school (as it will be the per student amount of the school's new approved
authority and not the approved authority the school was originally approved for). This may
result in the school being either financially disadvantaged or advantaged, for the sole reason
that the school's approved authority is different to the authority the school was approved for
on 1 January 2014.
In addition, if the participating school transfers to an approved authority that is not subject to
Division 5 of Part 3 of the Act, it will have its funding calculated under Division 2 of Part 3 of
the Act (i.e. at the schooling resource standard), which may also result in the school being
either financially disadvantaged or advantaged, rather than its funding transitioning smoothly
to the schooling resource standard over time.
Item 35 will insert Subdivision B in Division 5 of Part 3. This will be to ensure that no
participating school which existed on 1 January 2014 is either financially advantaged or
disadvantaged when moving between approved authorities, and to enable the funding
transition path of the school to be smooth and consistent with the other schools of its new
approved authority.
New clause 63A will apply if, on 1 January 2014, a participating school (the transition school)
was specified in the approval of an approved authority (the old approved authority), and, after
1 January 2014, the transition school is specified in the approval of another approved
authority (the new approved authority), and Subdivision A of Division 5 of Part 3 applied in
relation to the old approved authority in relation to the transition school.
Subclause 63A(2) will ensure that the Minister may determine an amount of financial
assistance for the new approved authority for the transition school for a year. This will be to
ensure that the transition school, and the new approved authority, is neither financially
advantaged nor disadvantaged due to the transition school moving between the old approved
authority and the new approved authority. For example, by ensuring that the calculation of
recurrent funding in relation to the number of students at the transition school occurs in a
similar manner as if the old approved authority were still approved for the school.
Subclause 63A(3) is included to assist readers, as the instrument determined under subclause
63A(2) will not be a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
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Subclause 63A(4) will ensure that the amount of financial assistance that is payable under
Part 3 of the Act for the new approved authority's transition school is worked out under
section 32 of the Act for a year if no determination is in force under subclause 63A(2) in
relation to the school for the year and Subdivision A of Division 5 of Part 3 does not apply in
relation to the new approved authority in relation to the school.
This subclause will ensure that the transition school is able to transition to Division 2 of Part
3 of the Act (schooling resource standard) in a similar manner as if the old approved authority
were still approved for the school.
New clause 63B will apply if a determination under subclause 63A(2) is in force in relation to
a new approved authority for a transition school for a year and, immediately before the new
approved authority became the approved authority for the transition school, Subdivision A of
Division 5 of Part 3 applied in relation to the authority for one or more other participating
schools for a year.
Subclause 63B(2) will ensure that Subdivision A of Division 5 of Part 3 (and any other
provisions that relate to that Subdivision) continues to apply to the new approved authority in
relation to its other participating schools for the year as if the transition school was not
specified in the authority's approval. This will ensure that the transition school does not
affect the transitional recurrent funding calculations of the new approved authority in relation
to any other participating schools that authority is approved for under the Act, that there is no
doubling-up of recurrent funding calculated in relation to the number of students at the
transition school, and that the transition school does not impact the transition of those other
participating schools.
Item 12 will create Subdivision A in Division 5 of Part 3 of the Act, which will incorporate
sections 57, 58, 59, 60, 61, 62 and 63 of the Act. This will be required due to the proposed
insertion of Subdivision B in Division 5 of Part 3 (see item 35).
Items 13, 14 and 16 will ensure that section 57 of the Act only applies to Subdivision A in
Division 5 of Part 3; this is a consequential amendment arising from item 12.
Item 15 will insert a note at the end of subsection 57(1) of the Act to explain the application
of section 63B to certain approved authorities.
Item 2 will insert a new definition, new approved authority, in section 6 of the Act for the
purposes of the proposed new clause 63A (see item 35).
Item 5 will insert a new definition, transition school, in section 6 of the Act for the purposes
of the proposed new clause 63A (see item 35).
Items 20, 22 and 30 will provide consequential amendments arising from the amendment in
item 12.
19
Pro-rating of a participating school's, or an approved authority's for a participating
school, total entitlement under the Australian Education Act 2013
Items 6, 7 and 9
Section 27 of the Act applies:
when no student receives primary education or secondary education at a participating
school, or at a location of the participating school, during a part of the year (except
school holidays)
the approval of a participating school's approved authority is varied during the year to
change a level of education for a location of the school
a participating school becomes or ceases to be entitled to financial assistance under
Part 3 of the Act.
If one of the above events has occurred to a participating school in a year, then the intention
of section 27 is that the amount of Commonwealth funding calculated under the Act in
relation to the school for the year is to be determined in accordance with the regulations,
which may mean that amount is pro-rated depending on when in the year the event occurred.
In order to give effect to this intention, either the total entitlement of the participating school,
or the amount of an approved authority's total entitlement in relation to the participating
school, is required to be determined in accordance with the regulations.
However, section 27 currently contains a cross referencing error, and does not refer to the
total entitlement of a school or authority under section 26 of the Act, rather the instalment
payment provisions in section 25 of the Act. The effect of this error is that while a
determination of the payment of an instalment of financial assistance for a school or authority
under section 25 can be determined in accordance with the regulations, the total entitlement of
the school or authority is not able to be so determined, which causes conflict between the
operation of sections 25 and 26 of the Act and makes section 27 currently unworkable.
Item 9 will correct this cross referencing error in section 27 and will ensure that section 27
applies to a participating school's, or an approved authority's for a participating school, total
entitlement.
This will ensure that where one of the matters specified in subsection 27(1) occurs in relation
to a participating school, the Commonwealth funding calculated under the Act in relation to
that school is able to be determined in accordance with the regulations.
Items 6 and 7 will insert explanatory notes in subsections 12(1) and 12(2) of the Act to
explain that the operation of section 27 of the Act may affect a participating school's, or
approved authority's, total entitlement, as section 12 defines the term total entitlement.
Location loading of participating schools under the Australian Education Act 2013
Item 8 will ensure that the correct definition of ARIA index values for locations of schools
are reflected in the table at subsection 13(1) of the Act.
The definitions in the table at subsection 13(1) of the Act erroneously describe an inner
regional school as a school with an ARIA index value of at least 1.
20
This item will amend the table in subsection 13(1) of the Act to ensure a major city school is
correctly defined as a school with an ARIA index value of 1, or less than 1. This item will
also amend the table in subsection 13(1) to ensure an inner regional school is correctly
defined as a school with an ARIA index value of more than 1, and less than 2.4.