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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
AUSTRALIAN EDUCATION (CONSEQUENTIAL AND TRANSITIONAL
PROVISIONS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for School Education, Early
Childhood and Youth, the Hon Peter Garrett AM MP)
AUSTRALIAN EDUCATION (CONSEQUENTIAL AND TRANSITIONAL
PROVISIONS) BILL 2013
GENERAL OUTLINE
The Australian Education (Consequential and Transitional Provisions)
Bill 2013 (the Bill) amends certain Commonwealth laws and contains
transitional arrangements consequential to the enactment of the Australian
Education Act 2013. It forms part of the Governments national school
education reform agenda, the full policy context and background of which is
set out in the Supplementary Explanatory Memorandum for Government
amendments to the Australian Education Bill 2012.
The Australian Government has agreed that Commonwealth recurrent and
capital funding for all Australian schools, including funding for schools
participating in the reform arrangements (,,participating schools) and
government schools in States and Territories choosing not to participate
(,,non-participating schools), will be provided under the proposed Australian
Education Act 2013 from 1 January 2014.
Commonwealth funding to States and Territories for government school
recurrent expenditure (the national specific purpose payment for schools) is
currently provided under section 11 of the Federal Financial Relations Act
2009. The funding is determined on a financial year basis, indexed and
apportioned between the States (which, for the purposes of the Act, include
the Australian Capital Territory and the Northern Territory) by determination
by the Treasurer under subsections 11(4) and (5) of that Act.
The estimated financial year payment, based on the latest available estimates
of relevant growth parameters, is paid to the State in advance under section
19 of that Act. By convention, and consistent with the Intergovernmental
Agreement on Federal Financial Relations, these payments are made in
monthly instalments. The Minister makes a final determination after the end of
the financial year, when final parameter values as at 30 June of that year are
known. If there is a difference between the estimated and final determined
outcome for the financial year, a balancing adjustment (positive or negative)
is made in the subsequent financial year.
Schedule 1 of the Bill repeals section 11 of the Federal Financial Relations
Act 2009 in relation to national specific purpose payments for schools and
provides transitional provisions to enable a smooth transition for appropriation
and management of these payments from a financial year (under the Federal
Financial Relations Act 2009) to a calendar year appropriation (under the
proposed Australian Education Act 2013).
Schedule 1 also repeals section 15 of the Federal Financial Relations
Act 2009, which deals with the total amount of financial assistance for the
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2008-09 financial year, as this section is now spent. Notes at subsections
12(3), 13(3) and 14(3) referring to section 15 are also repealed.
Schedule 1 also amends the Schools Assistance Act 2008 to cease calendar
year funding for non-government schools for capital purposes under that Act
from the end of the 2013 calendar year.
Schedule 2 of the Bill contains transitional provisions relating to certain
requirements under the proposed Australian Education Act 2013 in order to
ensure a smooth transition and reduce the administrative burden associated
with moving to the new arrangements. These include:
approvals for existing approved authorities for schools;
timing for the requirement for an approved authority to be a body
corporate;
applications for approved authorities not dealt with by 31 December
2013;
approvals for existing block grant authorities;
notice of approvals deemed to have been made under Schedule 2;
timing for implementation plans and school improvement plans;
definition of a majority Aboriginal and Torres Strait Islander school for
2014; and
a schools SES score.
Schedule 2 also allows the Governor-General, before 1 January 2015, to
make regulations under section 125 of the proposed Australian Education Act
2013 that deal with transitional matters.
FINANCIAL IMPACT STATEMENT
There is no financial impact associated with the Bill.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Statement of Compatibility with Human Rights appears at the end of this
Explanatory Memorandum.
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AUSTRALIAN EDUCATION (CONSEQUENTIAL AND TRANSITIONAL
PROVISIONS) BILL 2013
Clause 1 Short title
This clause sets out how the new Act is to be cited, that is, the Australian
Education (Consequential and Transitional Provisions) Act 2013.
Clause 2 Commencement
This clause provides that:
sections 1 to 3 commence on the day the Act receives Royal Assent
Schedules 1 and 2 commence at the same time as the Australian
Education Act 2013 commences (i.e. 1 January 2014).
Clause 3 Schedule(s)
This clause states that each Act specified in a Schedule to this Bill will be
amended or repealed as set out in the Schedules. Any other item included in
a Schedule has effect according to its terms.
Schedule 1 - Amendments
Item 1 Section 11
This item repeals section 11 of the Federal Financial Relations Act 2009.
Section 11 provides for national specific purpose payments to States (which
includes the Australian Capital Territory and the Northern Territory) for the
purpose of expenditure on schools.
This section is repealed as financial assistance for schools from 1 January
2014 is intended to be dealt with under the proposed Australian Education
Act 2013 (excluding National Partnership payments).
Item 2 Subsections 12(3), 13(3) and 14(3) (notes)
This item repeals the notes under subsections 12(3), 13(3) and 14(3) of the
Federal Financial Relations Act 2009. The notes under subsections 12(3),
13(3) and 14(3) refer to section 15, which will be repealed by item 3 of
Schedule 1 to this Bill as the section is spent.
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Item 3 Section 15
This item repeals section 15 of the Federal Financial Relations Act 2009
which refers to the total amount of financial assistance for the 2008-09
financial year and is therefore spent.
Item 4 Transitional Provisions
Item 4 subitems (1), (2) and (3)
National specific purpose payments for government schools are intended to
be replaced by the financial assistance provided for under the proposed
Australian Education Act 2013 from 1 January 2014.
This item allows the repealed section 11 of the Federal Financial Relations
Act 2009 to continue to apply for the 2013-14 financial year but reduces the
total amount of financial assistance for schools payable under that section to
half that which would normally be paid, to arrive at an amount payable for the
six months from 1 July 2013 to 31 December 2013 (as determined by the
Treasurer after the end of the 2013-14 financial year).
This ensures there is no doubling-up of the payment of national specific
purpose payments for schools and the payment of financial assistance under
the Australian Education Act 2013.
This item will also allow the Treasurer to:
continue to determine the manner in which the financial assistance
payable under the Federal Financial Relations Act 2009 for the period
1 July 2013 to 31 December 2013 is indexed and divided between the
States;
continue to make payments in 2014-15 to make up a shortfall to a
State if that State has been underpaid under that section.
Item 4 subitem (4)
This subitem ensures that the correct amount is used in the calculation at
Part 4 of the Australian Education Act 2013 of the amount payable for
national specific purpose payments for non-participating schools from
1 January 2014 (by ensuring that the calculation refers to the total amount
that would have been payable for the 2013-14 financial year under section 11
of the Federal Financial Relations Act 2009, and not half that amount).
Item 4 subitem (5)
This subitem provides definitions for use in item 4. ,,FFR Act means the
Federal Financial Relations Act 2009. ,,State includes the Australian Capital
Territory and the Northern Territory.
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Item 5 Paragraph 3(3)(b) and item 6 Section 4 (paragraph (b) of the
definition of program year)
These items amend the Schools Assistance Act 2008 to ensure that
appropriation and management of capital funding for non-government schools
ceases under that Act after 31 December 2013. From 1 January 2014,
appropriation and management of capital funding for schools it intended to be
under the Australian Education Act 2013.
Schedule 2 - Transitional Provisions
Item 1 Definitions
This item includes explanations of abbreviations and expressions used in
Schedule 2:
,,the new Act means the Australian Education Act 2013. ,,The old Act
means the Schools Assistance Act 2008;
expressions that are defined for the purposes of the new Act, and are
used in relation to the new Act have the same meaning as in the new
Act;
expressions that are defined for the purposes of the old Act, and are
used in relation to the old Act have the same meaning as in the old
Act.
Item 2 Approved authorities for non-government schools
This item means that each approved authority for non-government school
systems and non-systemic schools approved under the Schools Assistance
Act 2008 as at 31 December 2013 is taken to be an approved authority under
the Australian Education Act 2013 on and after 1 January 2014.
Under section 79 of the Australian Education Act 2013, an approved authority
is approved only for a school that is specified in the approval, a location of the
school that is specified in the approval, and a level of education at that
location that is specified in the approval.
Consequently, this item also clarifies the things taken to be specified in an
approval deemed to have been made under this item, being:
each approved school for which the authority is taken to be approved;
each location that, on 31 December 2013, was approved for each such
school;
each level of education that, on 31 December 2013, was approved for
each such location.
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Item 3 Non-bodies Corporate
Under the Australian Education Act 2013, one of the basic requirements for
approval of an approved authority is that a non-government body applying for
approval is a body corporate. This is consistent with the requirement for
approved authorities for non-systemic schools under the Schools Assistance
Act 2008, but is a new legal requirement for approved authorities for systemic
schools. This item suspends the requirement to allow those approved
authorities that are not body corporates on 31 December 2013 until
31 December 2014 to make the necessary arrangements to comply with the
body corporate requirement.
If an approved authority under the Schools Assistance Act 2008 becomes an
approved authority pursuant to item 2 and becomes a body corporate before
1 January 2015, then that body corporate will be taken to be the new
approved authority. This ensures that the incorporation of the approved
authority (which may create a new legal entity) does not impact on the
approved authoritys rights and obligations under the new Act, including its
funding under the transitional funding provisions (Division 5 of Part 3 of the
new Act).
Item 4 Applications for approved authorities that have not been dealt
with by 31 December 2013
If a body has applied for approval as an approved authority under the Schools
Assistance Act 2008, but a decision on the application has not been made by
31 December 2013, that application is taken to have been made under the
Australian Education Act 2013, and is dealt with under the provisions of the
new Act (including, for example, the ability for the Department to seek further
information from the applicant about matters that may need to be addressed
under the new Act).
However, despite section 73(6) of the Australian Education Act 2013 (which
allows an approval of an approved authority to come into force earlier than
the day the approval is given), approvals in relation to this item may not come
into force before 1 January 2014.
Item 5 Approved authorities for government schools
For the purposes of the Australian Education Act 2013, the Minister is taken
to have approved a State or Territory to be the approved authority for
government schools located in the State or Territory.
The approval under this item is deemed to be in force on and after
1 January 2014.
This item also clarifies the things taken to be specified in an approval of an
approved authority for government schools that is taken to have been made
under this item, being:
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each school for which the authority is taken to be approved;
each location that, on 31 December 2013, was approved by the State
or Territory for each government school;
each level of education that, on 31 December 2013, was approved by
the State or Territory for each location.
Item 6 Block grant authorities
The Minister is taken to have approved those block grant authorities who
were approved under the Schools Assistance Act 2008 as at
31 December 2013 for the purposes of the Australian Education Act 2013.
The approval is taken to be in force on or after 1 January 2014.
Section 86 of the Australian Education Act 2013 provides that an approval of
a block grant authority is limited to the schools specified in the approval
(including specification by reference to their approved authority).
Consequently, a block grant authority approved under item 6 is taken to be
approved for those schools in relation to which the body is, on
31 December 2013, a block grant authority under the Schools Assistance Act
2008.
Item 7 No notice of decision required
Despite section 119 of the Australian Education Act 2013 (which requires
written notification of a reviewable decision to be given to the relevant person
for a reviewable decision), there is no requirement to notify of approvals taken
to be in force under Schedule 2.
This item is for clarification only; as the deeming of approvals under Schedule
2 are not actually decisions under the new Australian Education Act 2013, as
there are no "decisions" being made that would trigger the requirement to
provide notice under section 119 of that Act.
However, the Department intends to write to all current approved authorities
and block grant authorities before 1 January 2014 to advise them of the effect
of the transitional provisions and, in the case of approved authorities, provide
provisional advice as to their funding entitlement for which they will be
approved from 1 January 2014.
Item 8 Variation or revocation of deemed approvals
This item clarifies that approvals taken to be in force under Schedule 2 can
be varied or revoked under the provisions of the Australian Education Act
2013 as if they had been granted under that Act.
This item is for clarification only. The deemed approvals made by Schedule 2
are, for all legal purposes, approvals under the new Australian Education Act
2013, and that Act applies in the ordinary way to those approvals. However,
since the approvals under Schedule 2 are automatically granted by operation
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of law, their granting to approved authorities and block grant authorities does
not imply that the Minister is satisfied those authorities actually satisfy all of
the approval criteria in the Australian Education Act 2013.
Thus, even though an approved authority under the Schools Assistance Act
2008 on 31 December 2013 will automatically become an approved authority
under the Australian Education Act 2013 on 1 January 2014 (item 2), that
does not prevent the Minister taking action against that approved authority
under the new Act from 1 January because he or she considers the authority
not to be a "fit and proper person", for example.
Item 9 Implementation plans and school improvement plans
This item provides timeframes in relation to requirements regarding school
improvement plans and implementation plans.
An approved authority for more than one participating school must comply
with Part 7 (implementation plans) of the Australian Education Act 2013 on
and from 1 January 2014.
An approved authority for a school must have a school improvement
framework and a school improvement plan for the school on and from 1
January 2015.
Item 10 Majority Aboriginal and Torres Strait Islander school
This item relates to the definition of ,,majority Aboriginal and Torres Strait
Islander school in section 8 of the Australian Education Act 2013, which in
part is defined by reference to the percentage of Aboriginal or Torres Strait
Islander students that are receiving education at the school on the schools
census day for the previous year.
Item 10 provides that, for the purposes of the definition in the principal Act, a
schools census day for 2013 is the census day for the school for 2013 under
the Schools Assistance Act 2008.
Item 11 SES scores
Determinations of a schools SES score in force under the Schools
Assistance Act 2008 as at 31 December 2013 are taken to have been made
under the Australian Education Act 2013 and be in force under that Act on
and after 1 January 2014.
Determinations deemed to be made in relation to this item are not reviewable.
This item does not prevent the Minister from making a new determination of a
schools SES score under section 52 of the Australian Education Act 2013.
This item is intended to operate as a fall-back only. The Department has
already calculated the SES scores for 2014 onwards in accordance with
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established practice, however for clarity will issue new SES determinations
under section 52 of the new Act prior to 1 January 2014. (This can be done
prior to the commencement of the new Act under section 4 of the Acts
Interpretation Act 1901).
Item 12 Regulations
Before 1 January 2015, regulations made under section 130 of the Australian
Education Act 2013 may modify the operation of that Act as is necessary or
convenient to deal with transitional arrangements.
Consultation with the Ministerial Council (subsection 130(5) of the Australian
Education Act 2013 refers) is not required in relation to regulations made
before 1 January 2014.
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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 (CONSEQUENTIAL AND TRANSITIONAL
PROVISIONS) BILL 2013
This Bill 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 Bill
The Australian Education (Consequential and Transitional Provisions) Bill will
amend the Federal Financial Relations Act 2009 and the Schools Assistance
Act 2008 to enable Commonwealth recurrent funding and capital funding for
schools to be appropriated exclusively under the proposed Australian
Education Act 2013 from 1 January 2014 and to enable regulations to be
made to prescribe modifications of the Australian Education Act 2013 that are
necessary or convenient to deal with transitional matters.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms. It contains
consequential and transitional provisions to help enable the Australian
Education Act 2013. A Statement of Compatibility with Human Rights is
attached to the Supplementary Explanatory Memorandum for the Australian
Education Bill 2012.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights
issues.
The Hon Peter Garrett MP AM,
Minister for School Education,
Minister for Early Childhood and Youth
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