AUSTRALIAN EDUCATION AMENDMENT (2019 MEASURES NO. 4) REGULATIONS 2019 (F2019L01421) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN EDUCATION AMENDMENT (2019 MEASURES NO. 4) REGULATIONS 2019 (F2019L01421)

EXPLANATORY STATEMENT

Australian Education Act 2013

Australian Education Amendment (2019 Measures No. 4) Regulations 2019

Authority

Subsection 130(1) of the Australian Education Act 2013 (the Act) empowers the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed by the regulations, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Under subsection 33(3) of the Acts Interpretation Act 1901, 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 a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Legislative background

The Act is the principal legislation by which the Australian Government provides Commonwealth financial assistance for schools.

Under the Act, the Commonwealth provides financial assistance to States and Territories for distribution to approved authorities for government and non-government schools. Entities approved to receive Commonwealth financial assistance under the Act, including States and Territories in their capacity as approved authorities for government schools, must meet and maintain the conditions of approval outlined in the Act.

The Australian Education Regulation 2013 (the Principal Regulation) contains a number of provisions on matters concerning conditions and calculations of grants of Commonwealth financial assistance to States and Territories for schools, matters relevant to the effective and efficient administration of that assistance, and matters relevant to the provision of prescribed circumstances funding under the Act.

The Act and Principal Regulation commenced on 1 January 2014.

Purpose and operation of amendments

The purpose of the Australian Education Amendment (2019 Measures No. 4) Regulations 2019 (the Amendment Regulations) is to prescribe 45 per cent as the percentage in the formula used to calculate the base amount of funding for distance education students at certain schools.

The additional financial support will enhance the approved authorities in meeting the requirements under the Act such as teaching the Australian Curriculum, increasing participation in relevant data collections (such as National Assessment - Literacy and Numeracy) and supporting students in their learning, including contact time.

Regulation Impact Statement (RIS)

The Office of Best Practice Regulation has agreed a Regulation Impact Statement is not required in relation to the increase to the SRS for NGDE students (OBPR reference 24571).

Commencement

The Amendment Regulations commence on the day after it is registered on the Federal Register of Legislation.

Consultation

The Australian Government has consulted all State and Territory Education Ministers and the non-government sector through the Independent Schools Council of Australia and the National Catholic Education Commission on the proposed Regulation. Some jurisdictions indicated a preference for an alternative funding mechanism. All feedback received during the consultation period was considered and informed the iterative development of the proposed Regulations.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Education Amendment (2019 Measures No. 4) Regulations 2019

The Australian Education Amendment (2019 Measures No. 4) Regulations 2019 (Amendment Regulations) 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

Human rights implications

The Amendment Regulations engage the right to education under Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Articles 28 and 29 of the Convention on the Rights of the Child (UNCRC).

Right to Education

The Amendment Regulations engage the right to education in Article 13 of the ICESCR. 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's education, provided those schools conform to minimum educational standards. The right to education for children is also found in Articles 28 and 29 of the UNCRC.

The Amendment Regulations promote the right to education by allowing families to choose the most appropriate form of education for their children.

Conclusion

The Amendment Regulations are compatible with human rights because they promote the right to education under the ICESCR and the UNCRC.

Dan Tehan

Minister for Education

Detailed explanation of the Amendment Regulations provisions

Section 1 - Name of Amendment Regulations

This section provides that the title of the Amendment Regulations is the Australian Education Amendment (2019 Measures No. 4) Regulations 2019.

Section 2 - Commencement

This section provides that the Amendment Regulations commence on the day after it is registered on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the Amendment Regulations are made under the Australian Education Act 2013.

Section 4 - Schedules

This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1 - Amendments

Item 1 amends the Principal Regulation by inserting a new section 16AA, which prescribes 45% for the purpose of determining a percentage of the SRS funding amount for a student for the purpose of paragraph 33(3)(b)(ii) of the Act.

A school's base amount is used in the formula in section 32 of the Act to work out the amount of financial assistance that is payable to a State or Territory for a year for a school under Division 2 of Part 3 of the Principal Regulation.

Section 33(3) of the Act sets out the formula to work out the base amount for a school (that is not covered by subsection 54(1) of the Act) at which there are distance education students. In the absence of the Principal Regulation prescribing another percentage, paragraph 33(4)(a) of the Act prescribes 35 per cent as the percentage of the SRS funding amount for a student under subparagraph 33(3)(b)(ii) for the purpose of calculating the base amount for a school under subsection 33(3). The proposed new section 16AA prescribes a higher 45 per cent as the percentage of the SRS funding amounts for a student for that purpose.