AUSTRALIAN EDUCATION AMENDMENT (2019 MEASURES NO. 5) REGULATIONS 2019 (F2019L01422) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN EDUCATION AMENDMENT (2019 MEASURES NO. 5) REGULATIONS 2019 (F2019L01422)

EXPLANATORY STATEMENT

Australian Education Act 2013

Australian Education Amendment (2019 Measures No. 5) 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 prescribed under 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. 5) Regulations 2019 (the Amendment Regulations) is to make necessary amendments to the Principal Regulation required before the 2020 calendar year.

The Amendment Regulations:

i. update the starting State-Territory shares for Victoria and Western Australia, to reflect the starting State-Territory shares used to calculate the State-Territory shares as specified in the relevant school education reform agreement with those States;

ii. make amendments to the Principal Regulation to enable the payment of additional financial assistance for non-government schools of approved system authorities for 2019, if the approved authority was an approved system authority in 2017 and had an SES score for 2017 specified in the Australian Education (SES Scores) Determination 2013. In line with the original policy intent for this type of prescribed circumstances funding, the amendment will ensure continuity of funding for those schools that met the requirements for equivalent financial assistance in 2018. The amendments are beneficial in nature and extends rather than reduces or otherwise alters the financial assistance available through this measure;

iii. update the total amount payable for adjustment funding for low-growth non-government schools for 2019. The amendment enables payments of adjustment funding for low-growth non-government schools to be made to these schools in 2019. The Amendment Regulations replace the total amount payable from $8.84 million with $36.49 million. The funding for low-growth non-government schools for 2019 is demand driven; amounts payable for schools for 2019 will be calculated using school and student characteristic data used to calculate 2019 recurrent funding payable under section 32 of the Act. The total amount payable specified in clause 8 was calculated using the best available data in 2018, with the intention the total amount payable would be updated, if required, when 2019 data became available. New clause 8 updates the total amount payable to reflect a new amount calculated using the 2019 data available to the department in line with the policy intention. The larger number reflects increased demand, driven by changes in school and student characteristic data between 2018 and 2019, and a small buffer to allow for updates to 2019 data that might occur from time to time;

iv. amend Schedule 3 of the Principal Regulation to specify additional schools in South Australia which were recognised, as a result of an annual process, as delivering secondary education rather than primary education to year 7 students. This will increase the Schooling Resource Standard funding amount (SRS funding amount) for students in year 7 at those schools, which is used to calculate recurrent funding under the Act.

Regulation Impact Statement (RIS)

The Office of Best Practice Regulation has agreed a Regulation Impact Statement is not required in relation to the Amendment Regulations (OBPR reference 25608).

Commencement

The Amendment Regulations commence on the day after they are registered on the Federal Register of Legislation.

Consultation

The Minister for Education wrote to all State and Territory Education Ministers, the Independent Schools Council of Australia, and the National Catholic Education Commission in September 2019 to formally consult on the Amendment Regulations, except in relation to the amendment to the total amount payable for low-growth non-government schools for 2019 (outlined at iii. above). All feedback received during the consultation period was considered prior to finalising the Amendment Regulations. All State and Territory Education Ministers, the Independent Schools Council of Australia and the National Catholic Education Commission broadly supported the measures as reflected in the Amendment Regulations.

The Minister for Education wrote to all State and Territory Education Ministers, the Independent Schools Council of Australia, and the National Catholic Education Commission to explain that the amendment to the total amount payable for low-growth non-government schools for 2019 (outlined at iii. above) was administrative in nature and was required to allow payments to be made in line with original policy intention.

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. 5) Regulations 2019

The Australian Education Amendment (2019 Measures No. 5) 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

The Amendment Regulations:

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. The right to education 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 required under the law. Article 13(2)(d) also contains the right to fundamental education which includes the elements of availability, accessibility, acceptability and adaptability which are common to education in all its forms and at all levels. Article 13(2)(e) further endorses the obligation of States Parties to actively pursue the "development of a system of schools at all levels" and to have an overall developmental strategy for its school system, at all levels, including prioritisation of a development strategy for primary education which is to be implemented with vigour.

The right to education for children is also contained in Articles 28 and 29 of the UNCRC. UNCRC contains similar provisions to article 13 of ICESCR, and also provides that the education of the child shall be directed to the development of the child's personality, talents and mental and physical abilities to their fullest potential.

The Amendment Regulations promote the right to education by providing additional financial assistance for prescribed circumstances, as an interim measure to support schools in 2019 and by ensuring schools located in South Australia that provide year 7 education at the secondary level, in accordance with the Australian Curriculum, attract secondary level funding from the Commonwealth. The Amendment Regulations support and promote the right to education by helping to ensure Australia can continue to have functioning and well-resourced educational institutions.

The measures in the Amendment Regulations are compatible with the right to education as they promote the right to education.

Conclusion

The Amendment Regulations are compatible with human rights because it promotes the right to education under ICESCR and 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. 5) Regulations 2019.

Section 2 - Commencement

This section provides that the Amendment Regulations commence on the day after they are 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 that Schedule, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1 - Amendments

Items 1 to 4 amend subsection 7(1), paragraph 7(1)(a), subsection 7(2) and paragraph 7(2)(a) of the Principal Regulation to specify that the levels of education that constitute primary and secondary education for a school, other than a special school, are for a calendar year. While 'year' is already defined in section 6 of the Act as a 'calendar year', these provisions also use the word 'year' in the context of referring to 'a year in a course of primary education or secondary education'. This minor technical amendment is made to reduce possible uncertainty about what 'year' means each time it is referred to in these provisions.

Item 5 repeals table item 2 of subsection 10A(2) of the Principal Regulation and replaces it with Victoria's updated starting State-Territory shares for government schools and non-government schools. The new percentages reflect the starting State-Territory shares that were used to calculate the State-Territory share as specified in paragraph 25 of Victoria's school education reform agreement (available online at: https://docs.education.gov.au/node/51991). The starting State-Territory shares have applied since 2018. This amendment therefore aligns the figures in the table with the agreement.

Item 6 repeals table item 4 of subsection 10A(2) of the Principal Regulation and replaces it with Western Australia's starting State-Territory shares for government schools and non-government schools. The new percentages reflect the starting State-Territory shares that were used to calculate the State-Territory share as specified in paragraph 29 of Western Australia's school education reform agreement (available online at: https://docs.education.gov.au/node/51801). The starting State-Territory shares have applied since 2018. This amendment therefore aligns the figures in the table with the agreement.

Item 7 amends clause 8 of Schedule 1 to the Principal Regulation to provide, for the purposes of paragraph 69A(4)(a) of the Act, the total of the amounts determined by the Minister for low-growth non-government schools for 2019 is $36.49 million rather than $8.84 million.

Section 69A of the Act provides for funding in prescribed circumstances. The Minister may, in writing, determine an amount of financial assistance that is payable under section 69A of the Act to a State or Territory for a school for a year if the Minister is satisfied that prescribed circumstances apply in relation to the school for that year.

Division 2 of Part 2 of Schedule 1 to the Principal Regulation enables the Minister to determine an amount of financial assistance to be provided to low-growth non-government schools that are not part of an approved system authority. The Amendment Regulations replace the total amount payable from $8.84 million with $36.49 million.

The funding for low-growth non-government schools for 2019 is demand driven; amounts payable for schools for 2019 will be calculated using school and student characteristic data used to calculate 2019 recurrent funding payable under section 32 of the Act. The total amount payable specified in clause 8 was calculated using the best available data in 2018, with the intention the total amount payable would be updated, if required, when 2019 data became available. New clause 8 updates the total amount payable to reflect the new amount calculated using the 2019 data available to the department in line with the policy intention. The larger number reflects increased demand, driven by changes in school and student characteristic data between 2018 and 2019, and a small buffer to allow for updates to 2019 data that might occur from time to time.

Item 8 repeals clause 17 of Schedule 1 to the Principal Regulation and replaces it with a new clause 17 of Schedule 1.

Before additional financial assistance for a year can be determined under section 69A of the Act, the Minister must be satisfied that prescribed circumstances apply in relation to a school. Clause 17 of Schedule 1 sets out the prescribed circumstances for additional financial assistance for non-government schools of approved system authorities for 2019, known as the system weighted benefit measure. This is one of the interim measures to support schools in 2019 prior to the implementation of the direct income measure of capacity to contribute, as per the Australian Government's response to the National School Resourcing Board's Review of the socio-economic status score methodology.

However, the prescribed circumstances set out in former clause 17 were too limited, and did not capture certain schools for which this funding was originally intended. New clause 17 therefore preserves the prescribed circumstances that were specified in repealed clause 17 (through new subclause 17(2)) but includes an additional set of prescribed circumstances that can be alternatively satisfied for additional financial assistance to be payable in 2019 (through new subclause 17(3)). The amendment is beneficial in nature and extends rather than reduces or otherwise alters the financial assistance available through this measure.

New subclause 17(3) thus enables the payment of additional financial assistance for non-government schools of approved system authorities for 2019, if the approved authority was an approved system authority in 2017 and had an SES score for 2017 specified in the Australian Education (SES Scores) Determination 2013. The amendment will ensure continuity of funding for those schools that met the requirements for equivalent financial assistance in 2018 as set out under Part 4 of Schedule 1. It was always intended that the total amount payable for this measure in clause 18 ($82.74 million) would include additional financial assistance for schools in these circumstances.

Item 9 repeals clause 1 of Schedule 3 to the Principal Regulation and replaces it with a new clause 1 of Schedule 3 that includes additional schools in South Australia that the Australian Government recognises as delivering year 7 as secondary education. Currently, under subsection 7(2) of the Principal Regulation, for the purposes of section 15 of the Act, the levels of education that constitute secondary education for schools in South Australia are years 8 to 12, unless specified in the table in clause 1 of Schedule 3. The amendments update this table following an annual exercise undertaken by the Department of Education to ensure it remains current. This will increase the SRS funding amount for students in year 7 at those schools, which is used to calculate the amount of recurrent funding payable under the Act.