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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
AUSTRALIAN EDUCATION BILL 2012
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for School Education, Early Childhood and
Youth, the Hon Peter Garrett AM MP)
AUSTRALIAN EDUCATION BILL 2012
Amendments to be moved on behalf of the Government
GENERAL OUTLINE
The purpose of the amendments is to enshrine in law a national approach to funding
school education that ensures that schools are funded according to the needs of their
students. The amendments also link schools funding to key school reform directions that
will provide the basis for achieving the goals that:
Australian schooling provides a high quality and equitable education for all students;
Australia be placed in the top five countries internationally in reading, mathematics
and science by 2025; and
Australia be considered to be a high quality and high equity schooling system by
international standards by 2025.
All recurrent Commonwealth funding for participating schools will be delivered through fair
and transparent needs-based arrangements, providing new investment to support reforms
that will help to improve each student's achievements at school. For participating schools,
additional investment will support the evidence-based reforms in the National Plan for
School Improvement that are focused on quality teaching, quality learning, transparency
and accountability, meeting student need and empowering school leadership.
For the first time participating government and non-government schools will be funded on
a consistent basis, with a new Schooling Resource Standard (SRS) for all recurrent
funding to participating schools. The States and Territories and non-government approved
authorities with more than one participating school will implement needs-based funding
models approved as consistent with the SRS, but will be able to tailor their models to best
address local needs. Funding for disadvantage will be fully publicly funded for both
government and non-government schools and students. Families choosing
non-government schools will still contribute to the base cost of funding their school,
consistent with current arrangements.
The new funding arrangements fundamentally change the way resources are provided by
better linking funding to each student's needs. These reforms deliver transparent funding
allocations for all schools and sectors.
The amendments provide financial assistance to States and Territories for government
and non-government schools from 2014 and beyond. Commonwealth financial assistance
is provided to States in accordance with section 96 of the Constitution, and to Territories in
reliance on section 122 of the Constitution. It replaces provisions in the Federal Financial
Relations Act 2009 which authorised funding to States and Territories for government
schools and supersedes the Schools Assistance Act 2008, which authorised recurrent
funding for non-government schools for 2008 to 2013.
The Preamble sets out the Commonwealths commitment to an Australian education
system with high expectations for every student, regardless of background, the type of
school they go to, or the barriers they face to educational attainment. It also shows the
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Commonwealths commitment to a system that delivers the support to make these high
expectations achievable. The Objects acknowledge matters referred to in the Preamble
and set out the objective of schooling and the national goals and targets for schooling.
Recipients of funding
The amendments provide for funding for both participating schools and non-participating
schools. A participating school is a non-government school, or a government school of a
participating State or Territory. A non-participating school is a government school of a non-
participating State or Territory. The Minister will determine the participating States and
Territories, which will be those States and Territories that are party to the National
Education Reform Agreement and have a signed bilateral agreement with the
Commonwealth.
Under the amendments, recurrent funding for schools is provided to the approved authority
for the school. For government schools the approved authority is the State or Territory and
for a non-government school, the approved authority is a body corporate that is approved
by the Minister for the school. An individual school may be its own approved authority or
an approved authority may govern or administer a group of schools. An approved
authority is approved in relation to the schools, locations and levels of education specified
in its approval.
Funding under the amendments is also able to be provided to block grant authorities,
capital grants authorities, and non-government representative bodies. Block grant
authorities are bodies corporate approved by the Minister to receive grants of financial
assistance for capital expenditure by non-government schools. Funding for capital
expenditure by schools generally can also be provided to capital grants authorities, which
include States and Territories, block grants authorities, and the approved authorities for
the schools themselves.
Conditions on grants to States and Territories
The amendments impose several conditions on the grants of financial assistance to States
and Territories. These include the requirement for States and Territories to implement
agreed national policy initiatives relating to school education in accordance with
regulations. Other conditions are the requirement to give financial assistance provided to
the State or Territory to the relevant approved authority, capital grants authority, block
grant authority, or non-government representative body, and to comply with regulations
relating to recovery of overpayments from approved authorities for non-government
schools. National policy initiatives are outlined including addressing Aboriginal and Torres
Strait Islander educational disadvantage and supporting work of national education
institutions such as the Australian Curriculum, Assessment and Reporting Authority, the
Australian Institute for Teaching and School Leadership, and Education Services Australia.
Schooling Resource Standard
The amendments outline how financial assistance for participating schools is calculated.
Financial assistance for participating schools is payable each year, based on a formula
that produces the Commonwealth share of a total amount of public funding. This financial
assistance is supported by the standing appropriation in the amendments (clause 126).
All participating schools are entitled to a base amount of funding for every student.
Students and schools who need extra support will also receive additional loadings. The
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base amount and most of the loadings are worked out by reference to an amount per
student called the SRS funding amount. There is a different SRS funding amount for
primary and secondary students. For 2014 the SRS funding amount is $9,271 for a
primary student and $12,193 for a secondary student. A combined school will receive an
SRS funding amount for each student that is the average of the primary and secondary
student amounts, weighted by the respective proportions of primary and secondary
students at the school. The SRS amount is indexed annually by 3.6%.
The base amount for a school for a year reflects the number of students at the school for
the year, the SRS funding amount for the year for a student at the school and the capacity
of the schools community (parents and other carers of students at the school) to
contribute financially to the school. The capacity to contribute component does not apply to
government schools, special and special assistance schools, sole provider schools and
schools with a majority of Aboriginal and Torres Strait Islander students.
Capacity to contribute
The amendments set out the details of calculating the ,,capacity to contribute percentage
for non-government schools - that is, the proportion of the SRS that will be publicly funded
based on its socio-economic status (SES) score. The amendments set out a range of SES
scores with corresponding capacity to contribute percentages for primary and secondary
schools. The Minister must determine a schools SES score, and can do so either by
legislative instrument to determine a score for a group of schools or by administrative
decision to determine a score for an individual school.
Distance education students at non-government schools will attract a set lower proportion
of the base per student amount that recognises the different levels of support appropriate
to those students. Loadings will still be 100% publicly funded for distance education
students.
Loadings
The amendments provide for six loadings for schools recurrent funding, and set out how
these loadings are calculated. Schools can receive additional funding through loadings for:
students with disability;
Aboriginal or Torres Strait Islander students - for every Indigenous student;
students with a low socioeconomic status - for every student in the bottom half of
socio-economic backgrounds;
students who have low English proficiency;
schools that are not in major cities - ranging from 10% for schools in regional areas
to 80% to very remote schools; and
schools that are not large schools (size loading).
The loadings (except the size loading) are a percentage of the relevant SRS funding
amount multiplied by the number of students at a school that qualify for that loading. The
loading for students with disability will be introduced once nationally consistent data on
these students is available and a robust loading developed in 2015. Until then, an interim
loading will be used as prescribed in regulations. For the size loading, small schools, and
very small schools in very remote areas with a certain number of students, are entitled to
the maximum size loading while large schools are not entitled to any size loading. All
other schools are entitled to a proportion of the maximum size loading. The amendments
also provide for some details for calculating these loadings to be specified in regulations.
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Transitioning to the new funding arrangements
Transition arrangements will apply to move schools and approved authorities towards their
SRS entitlement over time.
The transitional funding arrangements rely on comparing the current funding outcomes for
school authorities with the funding outcomes under the new SRS funding arrangements,
and over a period of time adjusting the funding amounts from the current amounts until
they reach the new SRS funding amounts. The comparison is done on an amount-per-
student basis, to ensure changes in enrolments over the transition period are taken into
account.
Approved authorities whose old per student amount for 2014 (i.e. the amount under
current funding arrangements) is less than their new per student amount for 2014 (i.e. the
amount under the SRS funding formulas) will receive additional funding over time to move
them towards the SRS amount by 2019.
Approved authorities whose old per student amount for 2013 (plus 3%) is more than their
new per student amount for 2014 will continue to receive the old per student amount, plus
indexation of 3% per annum until their new per student amount catches up with their
publicly funded SRS amount. This guarantees that even schools that are currently funded
at more than the SRS funding amounts will continue to receive their current funding (on a
per-student basis), indexed by 3% per annum.
A transitional provision applies for special schools and special assistance schools for 2014
to ensure that the approved authority for those schools is paid at least the old per student
amount for 2014 for their students.
Transitional funding is supported by the standing appropriation in the amendments.
Capital funding/special circumstances/non-government representative bodies
The current capital grants program for non-government schools is maintained under the
amendments. The amendments provide for a capped amount to be paid to block grant
authorities every year. That amount is indexed in keeping with current arrangements. This
funding is supported by the standing appropriation in the amendments.
The amendments also provide for capital funding to be paid to capital grants authorities.
This enables capital grants programs to be rolled out in future, as determined by
government. The amendments do not provide an appropriation for these capital grants,
which must be set out in the Budget and supported by annual appropriations.
The Minister may also determine that financial assistance is payable for a school in special
circumstances. This maintains the current arrangements for short-term emergency
assistance. Special circumstances funding is appropriated under annual appropriations.
The amendments also empower the Minister to determine financial assistance to be paid
to a non-government representative body that represents the interests of non-government
schools. The amount available would be provided by annual appropriation
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Non-participating schools
The amendments set out funding for non-participating schools which are government
schools in States and Territories that have not signed the National Education Reform
Agreement. Funding is worked out by reference to the amount that the State or Territory
received during 2013 under the Federal Financial Relations Act 2009. Consistent with
arrangements under that Act, the non-participating jurisdictions amount is indexed each
year by the Minister, and split amongst the non-participating jurisdictions, having regard to
the Intergovernmental Agreement on Federal Financial Relations.
Approval of approved authorities
The amendments provide the Minister with the power to approve (or not approve)
approved authorities to receive Commonwealth funding. This approval is based on the
authority meeting basic and ongoing requirements for approval, as set out in the
amendments (and regulations).
Basic requirements for funding
All approved authorities are required to meet basic, or threshold requirements in order to
receive funding. These requirements apply to all approved authorities of government and
non-government schools as well as non-participating schools. The amendments include a
provision that recognises State and Territory governments as satisfying the basic
requirements automatically.
The basic requirements to be met include:
not conducting schools for profit;
being financially viable;
being a body corporate (non-government) or body politic (government);
being a fit and proper person.
The body corporate requirement applies to all non-government approved authorities and
reasonable transition arrangements will be in place for any approved authority that needs
to become incorporated. The fit and proper person requirement ensures that approved
authorities (and specific personnel within the approved authority) are of good character
and have, or have access to, requisite skills to support delivery of high-quality education
outcomes and proper management of the school.
Ongoing policy requirements
The amendments set out ongoing policy requirements, to be met by all approved
authorities, in order to receive funding. Ongoing policy requirements apply to all
government and non-government schools, and apply to participating and non-participating
schools.
Ongoing policy requirements for an approved authority are to:
enhance teacher and principal performance and professional development at the
schools;
implement the national curriculum (Australian Curriculum or equivalent);
participate in the national assessment program;
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have a school improvement framework, and ensure that each school develops,
implements, publishes and reviews a school improvement plan;
comply with relevant disability discrimination laws of the Commonwealth, a State or
Territory; and
provide information as required by the regulations.
Information requirements that will be included in regulations include arrangements related
to the school census, national data collection, to conducting research on school and
school education, approved authority implementation plans or school improvement plans,
the administration and operation of a school, student reports to parents and publicly
available information about a school.
Ongoing funding requirements
The amendments set out ongoing funding requirements for approved authorities:
that the approved authority deals, in accordance with the regulations, with financial
assistance that is payable under the Act (for example, that recurrent funding is
spent on school education); and
that the authority complies with monitoring and compliance requirements prescribed
by the regulations relating to the authoritys compliance with the Act (including
conditions of its approval) and its implementation plan.
Further, approved authorities for more than one participating school must:
distribute all financial assistance (from the Act or a State or Territory) in accordance
with a needs-based funding arrangement; and
comply with Part 7 of the Act (requirements relating to implementation plans).
Implementation Plans
Approved authorities for more than one participating school must have an implementation
plan, which meets the requirements set out in Part 7 of the amendments. Implementation
plans explain how the approved authority intends to implement the education reforms and
must set out activities, programs and initiatives, including implementation milestones and
timelines and mechanisms for measuring progress. Approved authorities must review
plans and evaluate progress, and the implementation plan (and reports of reviews) must
be published.
The amendments also provide the Minister with a residual power to give approved
authorities directions in relation to their implementation plans, for example, where an
approved authority is not undertaking the activities it has committed to. In deciding whether
to give such a direction the Minister must have regard to any relevant education
agreement that the approved authority is a party to such as the National Education Reform
Agreement or the National Education Agreement.
Review of decisions
The amendments provide for enhanced review mechanisms compared to previous schools
funding legislation. The amendments provide for statutory mechanisms for the review of
specified administrative decisions including a system of internal review by the department,
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as well as external, independent review by the Commonwealth Administrative Appeals
Tribunal.
Failure to comply or overpayment
The amendments give the Minister the power to take action if a State or Territory,
approved authority, block grant authority, capital grants authority or non-government
representative body fails to comply with the specified provisions of the amendments, or
does not repay an amount that it owes to the Commonwealth. In those circumstances, the
Minister may require a State or Territory to pay an amount, may reduce an amount that
would otherwise be payable to the State or Territory under this Act or may delay a
payment. (These provisions are similar to provisions for current schools funding
legislation.)
Regulations
The amendments allow for the making of regulations similar to previous schools funding
legislation. Due to the more comprehensive nature of the amendments and the fact that it
consolidates requirements previously found in the Administrative Guidelines for the
Schools Assistance Act 2008 and funding agreements under that Act, regulations under
the Bill will be more extensive than the Schools Assistance Regulations 2009. The
regulations provide a mechanism for amending elements of the calculation of funding and
prescribe detail regarding the approval conditions, consolidating requirements previously
found elsewhere such as the Guidelines and funding agreements.
Because the Bill is part of a nation-wide school education and funding reform agenda, to
be implemented in conjunction with States and Territories and supported by
intergovernmental agreements, the Standing Council on School Education and Early
Childhood will have a role in reviewing regulations made for the Act. Consequently, before
the Governor-General makes regulations for the Act, the Minister is obliged to consult the
Standing Council on them.
FINANCIAL IMPACT STATEMENT
These amendments provide for an appropriation of an estimated $104.3 billion over 2014
to 2019.
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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 BILL 2012
Amendments to be moved on behalf of the Government
NOTES ON AMENDMENTS
Amendments 1 to 6
These amendments amend the Preamble.
The Preamble sets out the Commonwealths commitment to an Australian education
system with high expectations for every student, regardless of background, the type of
school they go to, or the barriers they face to educational attainment, and a system that
delivers the support to make these high expectations achievable. Amendments include
specific references to the Melbourne Declaration on Educational Goals for Young
Australians and more specific references to non-government organisations, parents and
carers, not-for-profit and community organisations, other partners and schools, to better
reflect the important role of these groups.
Amendment 7
Amendment 7 is a technical amendment to add a heading at the start of Part 1.
Amendment 8
Amendment 8 substitutes clause 3 (Objects of the Act).
The Objects have been amended to include the objective for schooling, consistent with the
National Education Reform Agreement, and to include the national education goals and
targets and existing Council of Australian Government targets.
The Objects of the Act also include the implementation of the National Plan for School
Improvement. The National Plan for School Improvement will address the five key school
education reform directions of: quality teaching; quality learning; empowered school
leadership; transparency and accountability; and meeting student need. The reform
directions are explained in subclauses 3(3) to (8).
Amendment 9
Amendment 9 inserts a new clause 4 (Guide to this Act).
Amendment 10
Amendment 10 omits clause 4 (Definitions) and substitutes a new Division 2 of Part 1
(clauses 6 to 19).
Amendment 11
Amendment 11 omits Part 2 (Improving the performance of schools and school students)
and substitutes new Part 2 (Grants of financial assistance to States and Territories).
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Amendment 12
Amendment 12 omits Part 3 (Miscellaneous) and substitutes new Part 3 (Recurrent
funding for participating schools)
Amendments 13 to 18
Amendments 13 to 18 add the following new Parts:
Part 4 (Recurrent funding for non-participating schools through a national specific
purpose payment)
Part 5 (Capital funding, special circumstances funding and funding for non-
government representative bodies)
Part 6 (Approving authorities and bodies)
Part 7 (Implementation plans)
Part 8 (Actions Minister may take for failure to comply with this Act and to require
amounts to be repaid)
Part 9 (Miscellaneous)
New Division 2 of Part 1 and Parts 2 to 9 are described below.
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Part 1 - Preliminary
Division 2 - Interpretation
Clause 6 - Definitions
This clause is an interpretation provision which contains definitions of the terms and
expressions used in the Act.
Clause 7 - Definition of census day
This clause provides that a schools census day for a year is the day determined by the
Minister, in writing, to be the schools census day for the year.
A determination by the Minister of a schools census day for a year must not be made less
than 5 weeks before the day unless the Minister determines that special circumstances
justify determining an earlier day. An example of special circumstances would include
where a school has closed prior to a census being undertaken. The Minister may
determine that schools census day to be a day before the school closed.
The clause provides that a determination by the Minister of a schools census day is not a
legislative instrument. This provision is for the sake of clarity and does not affect the legal
character of such a determination, which would not be a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.
The Minister must notify the approved authority for a school of the schools census day for
a year, in such a way that makes it reasonably likely for the approved authority to become
aware of the census day. This can include by publication on a website that the approved
authority is likely to access. The notice must be given at least 5 weeks before the census
day unless special circumstances exist (for example, the school has closed and the
census day is retrospective), in which case the notice must be given as soon as
practicable.
A student receives primary or secondary education at a school on the schools census day
if the student is enrolled at the school on that day and either the student attends the school
on a daily basis in the 4-week period that ends on that day (excluding school holidays), or
the Minister determines that the student is a person who receives primary education or
secondary education at the school.
Clause 8 Definition of majority Aboriginal and Torres Strait Islander school
This clause provides that a school is a majority Aboriginal and Torres Strait Islander school
for a year if the school has an ARIA index value of more than 10.53 or is in a very remote
area, and at least 50% of the students at the school on the schools census day for the
previous year are Aboriginal and Torres Strait Islander students.
If the school does not have an ARIA index value of more than 10.53 and is not in very
remote area, the school is also a is a majority Aboriginal and Torres Strait Islander school
if at least 80% of the students at the school on the schools census day for the previous
year are Aboriginal and Torres Strait Islander students.
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Clause 9 - Definition of overpayment
This clause specifies what constitutes an overpayment to a State or Territory in relation to
participating schools, approved authorities during transition period, non-participating
schools, capital funding, special circumstances funding and non-government
representative bodies. Generally, where the Commonwealth makes a payment to a State
or Territory as a result of a determination by the Minister that funding is payable, and the
total of the amount of the payment, and any previous payments made, as a result of the
determination exceeds to the relevant entitlement or limit, an overpayment arises.
Participating schools
If the payments of recurrent funding for a year for a participating school exceed the
schools total entitlement for the year, the overpayment consists of the amount paid in
excess of the total entitlement.
Approved authorities during transition period
If the payments of transitional recurrent funding for an approved authority for a year
exceed the approved authoritys total entitlement for the year, the overpayment consists of
the amount paid in excess of the total entitlement.
Non-participating schools
If the payments of recurrent funding for non-participating schools for a year exceed the
total entitlement for those non-participating schools for the year, the overpayment consists
of the amount paid in excess of the total entitlement.
Capital funding
If the payments of capital funding for a capital grants authority or block grant authority for a
year exceed the amount of capital funding determined by the Minister under clause 67, the
overpayment consists of the amount paid in excess of the amount determined by the
Minister under clause 67.
If the payments of capital funding for a block grant authority for a year exceed the amount
of capital funding worked out for the year under clause 68, the overpayment consists of the
amount paid in excess of the amount worked out for the year under clause 68.
Special circumstances funding
If the payments of special circumstances funding for a school for a year exceed the
amount of special circumstances funding determined by the Minister under clause 69, the
overpayment consists of the amount paid in excess of the amount determined under
clause 69.
Funding for non-government representative body
If the payments for a non-government representative body for a school for a year exceed
the amount of funding for the body for the year determined by the Minister under clause
70, the overpayment consists of the amount paid in excess of the amount determined
under clause 70.
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Clause 10 - Definition of receives
This clause provides for a definition of the concept of a student receiving primary
education or secondary education at a school.
A person receives primary or secondary education only if:
the person attends the school on a daily basis and the school location and the level
of education provided at that location are specified in the approval of the approved
authority for the school; or
the Minister is satisfied that special circumstances apply and the Minister
determines that the person receives primary or secondary education at the school.
The requirement that a person attends on a daily basis is not intended to require
attendance every single day. Students may be absent from school for legitimate reasons
such as illness, significant family emergencies, to attend a special religious ceremony and
in certain circumstances family holidays. If outside these justifiable absences the person is
in regular attendance at a school, the person is considered to attend on a daily basis.
A determination in relation to special circumstances may be made on the Ministers
initiative or on application by the approved authority for the school. Any application by the
approved authority that relates to a year must be made within 14 days of the schools
census day for the year or, if allowed by the Minister, within a longer period specified by
the Minister.
A student will be taken to be receiving primary or secondary distance education at a
school in a State or Territory only if the student resides in the State or Territory, the State
or Territory provides funding for the school (other than financial assistance provided to the
State or Territory for the school under the Act) for primary or secondary education for
students enrolled at the school who receive distance education from the school, and the
student is not approved as a home-education student in the State or Territory.
Clause 11 - Definition of recoverable payment
This clause provides a definition of when a payment is a recoverable payment as a
payment other than an overpayment, that the Commonwealth purports to make, and but
for the deeming provision under clause 112, does not have the power to make.
Clause 12 - Definition of total entitlement
This clause provides a definition of total entitlement for a year for a participating school, an
approved authority and for non-participating schools.
The total entitlement for a year for a participating school is the amount payable under
Division 2 of Part 3 - The funding formula for participating schools. That Division specifies
the funding formula for participating schools, including a base amount and loadings.
The total entitlement for a year for an approved authority is the amount payable under
Division 5 of Part 3 - Transitional recurrent funding for participating schools. That Division
specifies the transitional recurrent funding for participating schools.
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The total entitlement for a year for non-participating schools is the amount payable under
Part 4 - Recurrent funding for non-participating schools through a national specific
purpose payment.
Clause 13 - Definitions of kinds of schools based on location
This clause provides for definitions of kinds of schools based on location. Schools are
defined as a major city school, an inner regional school, an outer regional school, a remote
school or a very remote school, based on the applicable ARIA index value set out in
column 2 of the table.
The regulations may replace the ARIA index values in the table, as well as formulas
relevant for the purposes of calculating the location loading.
Clause 14 - Minister to determine participating States and Territories
This clause provides that the Minister may make a determination in writing that a State or
Territory is a participating State or Territory if the Minister is satisfied that the State or
Territory is a participating State or Territory. The note under this provision provides that a
participating State of Territory is a party to the National Education Reform Agreement and
has a bilateral agreement with the Commonwealth.
Such a determination comes into force on 1 January of the year specified in the
determination (because the Act will provide for annual funding calculation and payment).
By coming into force on 1 January of the year specified in the determination, the
determination will cover schools from the start of the calendar year irrespective of when
the determination was made. This ensures schools are not disadvantaged for that school
year.
The determination is a legislative instrument that is not subject to disallowance, as the
determination will give effect to intergovernmental agreements between the
Commonwealth and participating States and Territories (see, for example, subsection
44(1) of the Legislative Instruments Act 2003 which provides that disallowance does not
apply where enabling legislation for an instrument facilitates the operation of an
intergovernmental scheme).
Clause 15 - Levels of education
This clause provides for the regulations to prescribe what is primary education, or
secondary education, in a State or Territory. Before the making any such regulations, the
Minister must have regard to the arrangements made for providing education at
government schools in the State or Territory.
The clause also provides that if, the Minister is satisfied that special circumstances exist,
the Minister may determine, in writing, that a different level of education from that
prescribed in the regulations constitutes primary or secondary education for a specified
special school, special assistance school, or student at the school.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
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Clause 16 - Working out the number of students at a school for a year
This clause provides that where the Act refers to the number of students at a school for a
year it means the number of students who receive primary or secondary education at the
school on the schools census day for the year.
The regulations will include provisions that explain a student that is attending on a daily
basis within four weeks prior to the census day (excluding school holidays) is considered
to have attended on the census day. This allows for normal movements of students who
otherwise attend regularly but were not present exactly on that day.
Clause 17 - Part-time students
This clause provides that a part time student is to be counted as a fraction of a student
representing the fraction of the full-time study load undertaken by the student at the
school. For example a student undertaking ½ a full-time study load should be counted as
½ a student. This fraction is based on study load not necessarily the percentage of time
attended.
Clause 18 - Minister to make determinations in relation to locations of schools
This clause provides that if a school has more than one location, the Minister may, in
writing, determine the location of the school for the purposes of working out the schools
ARIA index value (which is relevant to determining its location and size loadings, for
example). If not all locations of the school are in the same State or Territory, the Minister
may determine, in writing, in which State or Territory the school is located (which is
relevant to determining which State or Territory to make grants of financial assistance to in
respect of the school, amongst other things).
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 19 - Non-government schools providing only distance education
The Act will not provide funding for non-government schools that only provide distance
education. Such bodies are not considered to be schools for the purposes of the Act. This
is consistent with current Commonwealth schools funding arrangements; distance
education funding under the Schools Assistance Act 2008 is only provided to schools
which are otherwise eligible for recurrent funding for students other than distance
education students (e.g. see subsections 57(1) and 58(1) of that Act).
However the Minister may determine that a specified non-government school is to be
considered a school for the purposes of the Act and therefore potentially be eligible for
funding.
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Part 2 -- Grants of financial assistance to States and
Territories
Clause 20 - Guide to this Part
This clause provides an outline of Part 2 of the Bill, which deals with grants of financial
assistance to States and Territories and conditions that apply to the provision of financial
assistance.
Clause 21 - Financial assistance for schools
This clause provides that financial assistance is payable to a State or Territory under
provisions for:
recurrent funding for a participating school located in the State or Territory;
transitional recurrent funding for participating schools for an approved authority, if
determined by the Minister;
recurrent funding for non-participating schools located in the State or Territory;
capital funding for a capital grants authority or block grant authority if determined by
the Minister;
special circumstances funding for a school if determined by the Minister;
funding for a non-government representative body for a non-government school if
determined by the Minister.
A note draws reference to clause 18 with respect to schools that are located in more than
one State or Territory.
Clause 22 - Conditions of financial assistance--implementing national policy
initiatives relating to school education
This clause provides that financial assistance is payable to States and Territories on the
condition that they implement national policy initiatives for school education in accordance
with the regulations. Before any such regulations are made, the Minister must have regard
to any decisions of the Ministerial Council relating to national policy initiatives for school
education and any relevant arrangement of a State or Territory.
A note explains that the national policy initiatives are those agreed policy initiatives that
States and Territories have responsibility for implementing for the school education system
generally (in their role as regulators and policy makers), including:
working cooperatively with other governments and non-government education
authorities to provide a high quality and highly equitable education system; and
supporting the work of national education institutions including the Australian
Curriculum, Assessment and Reporting Authority, the Australian Institute for
Teaching and School Leadership, and Education Services Australia Ltd; and
improving the quality of teachers (including through nationally consistent registration
processes); and
addressing Aboriginal and Torres Strait Islander educational disadvantage.
The elements included in this clause refer to areas of national reform activity agreed
through the Standing Council for School Education and Early Childhood and reflect the
reforms outlined in the National Education Reform Agreement.
16
Clause 23 - Conditions of financial assistance--conditions relating to payments to
States and Territories for non-government schools
This clause provides that payments of the following kinds of financial assistance to a State
or Territory are subject to the conditions set out in the clause:
recurrent funding for a non-government school (Division 2 of Part 3);
transitional recurrent funding for an approved authority for a non-government school
(Division 5 of Part 3);
capital funding for a capital grants authority for a non-government school or a block
grant authority (Division 2 of Part 5);
special circumstances funding for a non-government school (Division 3 of Part 5);
funding for a non-government representative body for a non-government school
(Division 4 of Part 5).
The conditions are as follows:
to pass on the payment to the relevant authority or body;
to make such payments as soon as practicable, or within a further period allowed by
the Minister.
Clause 24 - Condition of financial assistance--recovering amounts
This clause provides that a condition of the payment of financial assistance to a State or
Territory is that the State or Territory comply with any regulations regarding recovering
amounts as a result of a determination made under paragraph 110(1)(a) or (b) from the
State or Territory or an approved authority, capital grants authority, block grant authority or
non-government representative body.
Paragraph 110(1)(a) allows the Minster to make determinations requiring States and
Territories, to which Division 2 of Part 8 applies, to pay the Commonwealth a specific sum.
Clause 25 - Minister to determine timing and amounts of recurrent funding
This clause concerns written determinations that the Minister may make in relation to the
amounts of payments of recurrent funding and the timing of such payments.
The purpose of this provision is twofold. First, it allows Commonwealth recurrent funding
for schools, which is calculated on an annual basis, to be paid in instalments, including
instalments in advance and arrears. Second, it ensures that the total annual entitlement to
Commonwealth recurrent schools funding is paid to the relevant authorities, thus providing
legal assurance of that funding.
Subclause (1) provides that the Minister may make written determinations of amounts of
financial assistance payable to a State or Territory for a year (and the timing of those
payments) for:
participating schools in that State or Territory under Division 2 of Part 3 (which
relates to the recurrent funding for participating schools); and
approved authorities in that State or Territory under Division 5 of Part 3 (which
relates to transitional recurrent funding for participating schools); and
17
non-participating schools in that State or Territory under Part 4 (which relates to
recurrent funding for non-participating schools).
Subclause (2) provides that, an amount may be determined, and a payment made under
subclause (1), taking into account information from a previous year (including information
from a census day of a previous year), and before the beginning of the year.
A determination for a school for a year can also be made after the end of the year.
Clause 26 - Entitlement to recurrent funding
This clause provides that the total amount of payments to a State or Territory for a
participating school for a year under Division 2 of Part 3 must equal the amount that is
determined under subclause (4) as the schools total entitlement for the year. ,,Total
entitlement is defined in clause 12.
The total amount of payments to a State or Territory for an approved authority for a year
under Division 5 of Part 3 must equal the amount that is determined under subclause (4)
as the authoritys total entitlement for the year.
The total amount of payments to a State or Territory for a non-participating school for a
year under Part 4 must equal the amount that is determined under subclause (4) as the
non-participating schools total entitlement for the year.
For the purposes of determining the total amount of payments, the Minister may determine
an amount that the Minister is satisfied is the relevant total entitlement.
A determination by the Minister under subclause (4) is not a legislative instrument. This
provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 27 - Pro-rating of recurrent funding
This clause provides that determinations are to be made under clause 25, in accordance
with the regulations, for a participating school or an approved authority for a participating
school for a year if:
no student receives primary or secondary education at the school, or one of its
locations, during a part of the year (except for school holidays); or
the approval of the schools approved authority is varied during the year to change
the level of education for a location of the school; or
the school either becomes entitled to or ceases to be entitled to financial assistance
under Part 3.
Clause 28 - Minister to determine timing and amounts of capital funding
This clause provides that the Minister may make written determinations of amounts of
financial assistance payable to a State or Territory for a year (and the timing of those
payments) for:
a capital grants authority under subclause 67(1) (which relates to capital funding for
capital grants authorities); and
18
a block grant authority under subclause 67(2) (which relates to capital funding for
block grant authorities).
A note explains that amounts payable may be reduced under clause 110.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 29 - Minister to determine timing and amounts of special circumstances
funding
This clause provides that the Minister may make written determinations of amounts of
financial assistance payable to a State or Territory for a year (and the timing of those
payments) for a school located in that State or Territory under Division 3 of Part 5 (which
relates to special circumstances funding).
A note explains that amounts payable may be reduced under clause 110.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 30 - Minister to determine timing and amounts of funding for non-
government representative body
This clause provides that the Minister may make written determinations of amounts of
financial assistance payable to a State or Territory for a year (and the timing of those
payments) for a non-government representative body under Division 4 of Part 5 (which
relates to funding for non-government representative bodies).
A note explains that amounts payable may be reduced under clause 110.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
19
Part 3 -- Recurrent funding for participating schools
Division 1 - Guide to this Part
Clause 31 - Guide to this Part
This clause provides an outline of Part 3 of the Bill which deals with recurrent funding for
participating schools.
Division 2 - The funding formula for participating schools
Clause 32 - The amount payable for a participating school
This clause sets out the funding formula for the amount of financial assistance that is
payable under this Division to a State or Territory for a year for a participating school.
Notes to the clause state that during the transition period, the amount of financial
assistance that is payable to a State or Territory may be worked out under Division 5 and
that the amount may be rounded up or down.
Clause 33 - Base amount for schools
This clause sets out the formula to work out a primary school or secondary schools base
amount for a year. A schools base amount is used in the formula in clause 32.
The clause sets out how the base amount is worked out for a year for a combined school
and for a non-government school (that is not covered by subclause 54(1)) at which
students receive distance education.
Clause 34 - SRS funding amounts
This clause sets out the SRS funding amount of $9,271 for a primary student and $12,193
for a secondary student in 2014. These amounts are indexed annually by 103.6%.
The clause also states that the SRS funding amount for a primary or secondary student
can be prescribed in the regulations.
The clause also sets out the formula for working out the SRS funding amount for a year for
a student at a combined school.
The SRS funding amounts are used in the formula in clause 33.
Clause 35 - School's total loading
This clause states that a schools total loading for a year is the sum of amounts calculated
for the year for the schools student with disability loading, Aboriginal or Torres Strait
Islander loading, low socioeconomic status student loading, low English proficiency
loading, location loading and size loading.
The schools total loading for a year is used in the formula in clause 32.
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Division 3 - Working out loadings
This Division sets out how to calculate the various loadings that make up a schools total
loading.
Subdivision A - Loadings (except location and size loadings)
Clause 36 - Student with disability loading
This clause sets out the formula to work out a schools student with disability loading for a
year. For 2014 there will be an interim loading for students with disability. The formula to
calculate a schools student with disability loading uses the disability loading percentage
which is the percentage prescribed for the school by the regulations. The formula also
uses the number of students with disability at the school for the year which is the number
of such students receiving primary or secondary education at the school on the schools
census day.
Clause 37 - Aboriginal and Torres Strait Islander loading
This clause sets out the formula to work out a schools Aboriginal and Torres Strait
Islander loading for a year. The formula uses the schools ATSI percentage for a year, and
the clause sets out the formula to work out the schools ATSI percentage for a year. The
formula also uses the number of Aboriginal and Torres Strait Islander students at the
school for the year which is the number of such students receiving primary or secondary
education at the school on the schools census day for the year.
Clause 38 - Low socioeconomic status student loading
This clause sets out the formula to work out a schools low socio-economic status student
loading for a year. This formula uses the schools quartile 1 amount and quartile 2 amount,
and the clause provides the formulae for calculating those amounts.
Part of the formula for calculating the schools quartile 1 amount and quartile 2 amount is
the number of students who are in quartile 1 and quartile 2, respectively, and those
numbers are prescribed by regulations. Information on numbers of students in quartiles 1
and 2 is currently sourced from the Australian Curriculum Assessment and Reporting
Authority (ACARA), but may form part of the National Education Data Program in the
future, hence the need for flexibility in determining the source of the information.
Clause 39 - Low English proficiency loading
This clause sets out the formula to work out a schools low English proficiency loading for
a year. This formula uses a proxy measure of the number of Disadvantaged Language
Background Other Than English (DLBOTE) students to infer the number of students at a
school for a year who have low English proficiency and this number is prescribed by
regulations. Information on numbers of DLBOTE students who have low English
proficiency is currently sourced from ACARA, but may form part of the National Education
Data Program in the future, hence the need for flexibility in determining the source of the
information.
21
Subdivision B - Location loading
Clause 40 - Location loading
This clause sets out the formula to work out a schools location loading for a year. This
formula uses a schools location percentage which is set out in the table at subclause 2.
Clause 41 - Location percentage for certain schools
This clause sets out the formulae to work out the location percentage for inner regional
schools, outer regional schools, remote schools and very remote schools.
Subdivision C - Size loading
Clause 42 - Size loading
This clause provides the size loadings for a school for a year, for a school that is a small
school (which is the maximum size loading, as worked out under clause 44), a very small
school (which is the amount worked out under clause 46), a medium-sized school (which
is the amount worked out under clause 51) or a large school (which is zero).
Clause 43 - Definitions--kinds of schools based on size
This clause provides definitions of kinds of schools based on size. Schools are defined as
a very small school, a small school, a medium-sized school and a large school based on
the number of students at the school for a year in relation to maximum lower, maximum
upper or zero lower limits set out in column 2 of the table.
Definitions of maximum lower limit, maximum upper limit and zero lower limit are provided
for a primary school, a secondary school and a combined school. The regulations may
also prescribe another number for each of these thresholds.
Clause 44 - Definition--maximum size loading
This clause sets out definitions of maximum size loading for a primary school or a
secondary school for 2014. The clause also provides that a schools maximum size
loading for other years is determined by an indexation formula, or may be prescribed by
the regulations.
The clause sets out the indexation percentage of 103.6% and provides that the regulations
may prescribe another percentage as the indexation percentage.
The clause also sets out the formula for a combined schools maximum size loading for a
year.
Clause 45 - Definitions--primary percentage and secondary percentage
This clause provides that a combined schools primary percentage and secondary
percentage for a year are the percentage of students at the school receiving primary and
secondary education, respectively, on the census day for the year.
22
Clause 46 - Very small schools--size loading
This clause sets out the size loading for a school that is a very small school for a year in a
table.
Clause 47 - Very small schools--schools covered by item 3 of the table in section 46
This clause provides the formula for the size loading for a year for a school that is covered
by item 3 of the table in clause 46. This formula uses increased starting amount, which is
worked out using the formula at subclause (2).
Clause 48 - Very small schools--major city schools
This clause provides the formula for the size loading for a year for a school that is covered
by item 4 of the table in clause 46 - major city schools.
Clause 49 - Very small schools--starting amount
This clause sets out a primary or secondary schools starting amount for a year for 2014.
The clause also provides that a schools starting amount for other years is determined by
an indexation formula, or may be prescribed by the regulations.
The clause sets out the indexation percentage of 103.6% and provides that the regulations
may prescribe another percentage as the indexation percentage.
The clause also sets out the formula for working out a combined schools starting amount
for a year.
Clause 50 - Very small schools--ARIA student number
This clause sets out the formula for working out a schools ARIA student number.
Clause 51 - Medium sized schools--size loading
This clause sets out the formula for working out the size loading for a medium sized school
for a year.
Division 4 - Miscellaneous
Subdivision A - Capacity to contribute percentage
This Subdivision sets out the details of calculating the capacity to contribute percentage -
that is, the schools share of the SRS based on its SES score.
Clause 52 Determining SES scores
This clause provides that the Minister must determine in writing each participating schools
SES score. It is provided that the Minister may determine, by legislative instrument, the
SES score for one or more schools.
Where the Minister does not determine a schools SES score by legislative instrument, the
Minister must determine the SES score by administrative decision. This determination
must be in accordance with the regulations unless the Minister is satisfied doing so would
23
result in an SES score that does not accurately reflect the socioeconomic circumstances of
the persons responsible for students at the school.
It is also provided that an administrative determination of a schools SES score that applies
to a year must not be made after the year has ended unless:
the determination (the new determination) replaces a previous determination that is
in force for the school and the SES score in the new determination is no higher than
the SES score in the previous determination; or
the approved authority for the school agrees in writing to the determination being
made retrospectively; or
the Minister is satisfied that special circumstances justify the determination; or
the determination is made by, or as a result of a decision by, an internal reviewer,
the Administrative Appeals Tribunal, or court after reviewing a previous
determination that applied to the year.
It is further provided that this clause does not apply in relation to a government school; a
special school; a special assistance school; a school that is a majority Aboriginal and
Torres Strait Islander school for a year; a sole provider school. As these schools have a
capacity to contribute of zero (subclause 54(1)) there is no need for the Minister to
determine their SES scores.
Clause 53 - Determinations may be on application or on Minister's own initiative
This clause provides that a determination of a schools SES score made by legislative
instrument or administrative decision may be made on the Ministers own initiative. It also
provides that an administrative determination of a schools SES score may be made on
application of the approved authority for the school or a person who is applying to be the
approved authority for the school.
It is also provided that an application made by a person must specify, the school to which
the application relates; the year to which the application relates; and if a determination
under clause 52 is already is force for the school, the reasons why the person is applying
for a new determination.
Furthermore it is provided that a person may not apply for a determination by
administrative decision of a schools SES score if the schools score has been determined
by legislative instrument under subclause 52(2).
Clause 54 - Capacity to contribute percentage
This clause provides that the capacity to contribute percentage is 0% for a government
school; a special school; a special assistance school; a school that is majority Aboriginal
and Torres Strait Islander for a year and a sole provider school.
Further the clause provides a table which establishes the capacity to contribute
percentage for primary and secondary schools (other than those mentioned above) based
on a schools SES score.
24
Subdivision B - Miscellaneous
Clause 55 - Locations of a school
This clause provides that for the purposes of this Part, and any other provisions to the
extent they relate to this Part, that a reference to a school includes a location of the school
only if the location, and the level of education provided by the school at that location, are
specified in the approval of the approved authority for the school.
Clause 56 - Rounding amounts
This clause provides for rounding to the nearest dollar, including rounding up an amount of
50 cents of an amount of financial assistance that is payable to a State or Territory for a
year for a participating school worked out under clause 32, and of an amount of a schools
loading for a year referred to in paragraphs 35(a) to (f).
Division 5--Transitional recurrent funding for participating schools
This Division sets out transitional funding arrangements for participating schools. Not all
schools will attract funding in the amounts determined under Division 2 (the fully-loaded
SRS amount) from 2014. Rather, they will receive funding increases that will bring them
into line with their fully-loaded SRS amounts over time.
The Division deals with three transitional funding arrangements:
funding for approved authorities who, on a per-student average, are currently
receiving less public funding than they would if their funding was calculated under
the fully-loaded SRS (so-called "below SRS" authorities) (clause 59);
funding for approved authorities who, on a per-student average, are currently
receiving more public funding than they would if their funding was calculated under
the fully-loaded SRS (so-called "above SRS" authorities) (clause 61); and
a funding guarantee for 2014 for above SRS authorities operating only special
schools and special assistance schools (clause 62).
Once an approved authoritys transitional funding amount equals the fully-loaded SRS
amount for all its schools, it is regarded as being "at SRS", and ceases to be funded under
the transitional arrangements, and its funding is calculated on a school-by-school basis
under Division 2 (clause 63).
Clause 57 - Application of this Division
This clause states that this Division applies in relation to an approved authority for one or
more participating schools and that in situations set out in clauses 59, 61 and 62, the
amount of financial assistance that is payable under this Division to a State or Territory for
a year is payable for an approved authority instead of a school.
Clause 58 - New and old per student amounts
This clause requires the Minister to determine in writing for each approved authority that is
an approved authority on 1 January 2014, an old per student amount for 2013 and 2014
and, if clause 59 applies in relation to the approved authority, an old Commonwealth per
student amount for 2014.
25
The per student amounts determined by the Minister for an approved authority must not be
inconsistent with the authoritys relevant arrangement (for example, its bilateral agreement
or memorandum of understanding with the Commonwealth).
It is also provides the formula for working out the new per student amount for a year for an
approved authority on 1 January 2014. This formula uses the approved authoritys total
public funding amount for the year, which is the total amount worked out for the year under
clause 32 for all the approved authoritys schools, disregarding the Commonwealths
share.
Clause 59 - Old per student amount for 2014 less than new per student amount for
2014
This clause applies if an approved authoritys old per student amount for 2014 is less than
the authoritys new per student amount for 2014.
The clause provides that, subject to clause 60, the Minister may in writing determine the
amount of financial assistance that is payable under this Division to a State or Territory for
the approved authority for a year in the transition period. The amount determined by the
Minister must not be inconsistent with the relevant arrangement of the approved authority
(for example, its bilateral agreement or memorandum of understanding with the
Commonwealth).
For each year that begins after the end of the approved authoritys transition period, the
amount payable under this Part for each of the approved authoritys schools is worked out
under clause 32.
The approved authoritys transition period begins on:
for an approved authority for government schools located in a State or Territory -
the day the State or Territory becomes a participating State or Territory; and
for an approved authority for non-government schools - 1 January 2014
and ends on the day determined by the Minister (which must not be inconsistent with the
approved authoritys relevant arrangement).
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 60 - Limits on amount that may be determined for the purposes of section
59
This clause sets out the limits on the amount that may be determined by the Minister of
financial assistance that is payable under this Division to a State or Territory for an
approved authority for a year in the transition period. Essentially, the amount of financial
assistance that is payable to an approved authority under clause 59 must be:
no less that the amount the approved authority would have receive from the
Commonwealth in 2014 under pre-existing arrangements (i.e. the old
Commonwealth per student amount) indexed by 4.7% per year; and
26
no more than the amount the approved authority would receive from the
Commonwealth under the SRS funding formulas.
This clause therefore gives effect to the guarantee that schools will receive an increase in
Commonwealth funding of at least 4.7% per annum, until they reach the SRS amount.
Clause 61 - Old per student amount for 2013, increased by 3%, more than new per
student amount for 2014
This clause applies if an approved authoritys old per student amount for 2013, increased
by 3%, is more than the authoritys new per student amount for 2014 and neither clause 59
nor 62 applies in relation to the approved authority.
The clause provides the formula to work out the amount payable under this Division to a
State or Territory for the approved authority for a year. This formula uses the approved
authoritys old per student amount for the year. For a year after 2014, this amount is
indexed.
This method of calculation ceases to apply once the approved authoritys new per student
amount for the year is equal to or more than the approved authoritys old per student
amount for that year. The amount of financial assistance that is then payable under this
Part is worked out under clause 32.
Clause 62 - Transitional recurrent funding for special schools and special
assistance schools for 2014
This clause applies if on 1 January 2014, an approved authority is approved only in
relation to one or more special schools or special assistance schools and clause 59 does
not apply in relation to the approved authority.
The clause provides the formula to work out the amount payable under this Division to a
State or Territory for the approved authority for 2014, despite clause 32.
This method of calculation ceases to apply for 2015 and each later year. The amount of
financial assistance that is then payable under this Part is worked out under clause 32.
Clause 63 - Funding for all other participating schools
This clause provides that the amount payable under this Part to a State or Territory is
worked out under clause 32, for 2014 and each later year, for each participating school
whose approved authority is not covered by clause 59, 61 or 62.
27
Part 4 -- Recurrent funding for non-participating schools
through a national specific purpose payment
Clause 64 - Guide to this Part
This clause provides an outline of Part 4 of the Bill which deals with recurrent funding for
non-participating schools through a national specific purpose payment.
Clause 65 - National specific purpose payments for schools in non-participating
States and Territories
This clause sets out the amount of financial assistance that is payable under this Part to a
State or Territory for a year for non-participating schools.
The total amount payable to all non-participating States and Territories for a year for non-
participating schools located in those States or Territories is:
for 2014 - their 2013 FFR amount, indexed in the manner determined by the
Minister; and
for any other year - the total amount payable for the previous year under this Part,
indexed in the manner determined by the Minister.
The clause sets out the formula for working out the 2013 FFR amount for non-participating
States and Territories.
The Minister may, by legislative instrument, determine, for each year, in which there are at
least 2 non-participating States and Territories, the manner in which the total amount of
financial assistance that is payable to all non-participating States and Territories for a year
for non-participating schools located in those States or Territories is to be divided between
those non-participating States and Territories.
In making a determination under this clause, the Minister must have regard to any relevant
arrangement of the non-participating States and Territories, for example, the
Intergovernmental Agreement.
28
Part 5 -- Capital funding, special circumstances funding and
funding for non-government representative bodies
Division 1 - Guide to this Part
Clause 66 - Guide to this Part
This clause provides an outline of Part 5 of the Bill which deals with capital funding, special
circumstances funding and funding for non-government representative bodies.
Division 2 - Capital funding
Clause 67 - Capital funding
This clause provides that the Minister may determine, in writing, an amount of financial
assistance that is payable to a State or Territory for a year for a capital grants authority or
a block grant authority for a school, if the Minister is satisfied that financial assistance is
required for capital expenditure for the school.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 68 - Limit on total amount available for capital funding for block grant
authorities
This clause provides that the total amount the Minister determines for capital funding for a
block grant authority for a year must not exceed the amount set out in the clause.
For 2014 that amount is the base assistance amount worked out under subsection 84(2) of
the Schools Assistance Act 2008 if it had applied in 2014. For any other year it is either:
the base assistance amount as indexed under subclause (2); or
if the regulations prescribe another amount, that amount.
Subclause (2) sets out the indexation for the base assistance amount as being the base
assistance amount for the previous year multiplied by the indexation percentage.
Subclause (3) sets out the indexation percentage as 100% or if the regulations prescribe
another percentage, that percentage.
Subclause (4) provides that before regulations are made for the purposes of subsection
(3), the Minister must consider changes in an index of building prices prescribed by the
regulations and an index of wage costs prescribed by the regulations.
Subclause (5) sets out rounding provisions, which requires rounding to the nearest $1,000
(rounding $500 upwards).
Subclause (6) sets out that a failure to comply with the total capped amounts in subsection
(1) does not affect the validity of a payment made as a result of a determination made
29
under paragraph 28(1)(b) (which permits the Minister to determine timing and amounts of
capital funding).
Division 3 - Special circumstances funding
Clause 69 - Special circumstances funding
This clause provides the Minister may determine, in writing, an amount of financial
assistance payable to a State or Territory for a school for a year if the Minister is satisfied
that special circumstances justify the determination.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Division 4 - Funding for non-government representative bodies
Clause 70 - Funding for non-government representative bodies
This clause empowers the Minister to determine, in writing, an amount of financial
assistance to a State or Territory for a year for a non-government representative body for a
non-government school.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
30
Part 6 -- Approving authorities and bodies
Division 1 - Guide to this Part
Clause 71 - Guide to this Part
This clause provides an outline of Part 6 of the Bill which deals with approving authorities
and bodies.
Division 2 - Approving approved authorities
Clause 72 - Application for person to be approved as an approved authority
This clause provides for a person to apply to the Minister to be approved as an approved
authority for one or more schools. Applications must specify each school for which the
application is made, each location of each school and for each such location, the level of
education provided at the location.
Clause 73 - Approval of person
This clause provides that the Minister may approve a person as an approved authority for
one or more schools if the person has made an application and the Minister is satisfied
that the requirements set out in clauses 75, 77 and 78 will be satisfied. Approval may be
subject to conditions and the approved authority must comply with such conditions. In
imposing any such conditions, the Minister must have regard to any relevant arrangement
of the approved authority.
An approval must specify the day on or after which the approval is in force. That day may
be earlier than the day the approval is given, but may be earlier than 1 January of year in
which the application is made only if special circumstances apply.
The Minister must not approve a person for a school, if another approved authority is
already approved for the school.
Clause 74 - Approval or refusal of approval on public interest grounds
This clause empowers the Minister to, in writing:
refuse to approve a person as an approved authority, if the Minister is satisfied that
it would be contrary to the public interest;
approve a person as an approved authority, if the Minister is satisfied that it is in the
public interest to approve the person.
These decisions are not reviewable on the merits, but a report must be laid before each
House of Parliament if the Minister makes a decision under this clause (see clause 127).
These decisions are not delegable, so must be made personally by the Minister (see
subclause 129(2)).
Further, subclause (2) requires the Minister to publish a notice of any decision made under
subclause (1) within 7 days giving a brief statement of reasons for the decision.
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Approvals under this clause may specify:
a period during which the approval is in force;
one or more requirements under clause 75, 77 or 78 with which the person is not
required to comply.
The purpose of this clause is to provide the Minister with a residual power to decide, in the
public interest, to provide or withhold Commonwealth recurrent funding for schools. In
doing so, the Act would operate in a similar fashion to the Schools Assistance Act 2008.
Funding under that Act is discretionary, whereas under the Bill as proposed, recurrent
funding is legally guaranteed. As there may be some circumstances where it is contrary to
the public interest to provide Commonwealth funding, the Minister can refuse to do so.
Equally, the tightening of approval requirements under the Bill could lead to some bodies
who would have been approved under the Schools Assistance Act 2008 not being
approved under the new provisions, and hence the Minister will remain able to approve
them - while also requiring those organisations to bring themselves into compliance with
the approval requirements in a reasonable period of time.
The fact that these decisions must be made personally by the Minister, must be published,
and included in the Ministers annual report to Parliament ensure these decisions are
made at the highest levels and are transparent and subject to scrutiny.
Clause 75 - Basic requirements for approval
This clause sets out the basic requirements for approval as an approved authority,
including being a body corporate or a body politic, not conducting for profit any school in
relation to which the application is made, being financially viable and being a fit and proper
person.
The clause also sets out a number of matters that the Minister may have regard to in
determining whether a person satisfies these requirements.
Another basic requirement is for each level and location specified in the approval, the
person is permitted under a law to provide that level of education at that location.
Clause 76 - Approved authorities for government schools taken to satisfy basic
requirements
This clause provides that approved authorities for government schools are taken to satisfy
the basic requirements for approval in clause 75.
However the Minister may, in writing, determine that a particular authority for a
government school does need to satisfy the basic requirements for approval. This would
enable the Commonwealth to examine whether a State or Territory education authority is
meeting the basic requirements - for example, whether it is operating a school for profit
while receiving Commonwealth funding for that school. Such a determination must be
made personally by the Minister, and reported on in the Ministers annual report to
Parliament under clause 127.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
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determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 77 - Ongoing policy requirements for approved authorities
This clause sets out the ongoing policy requirements for an approved authority for the
schools for which the authority is approved. These requirements are:
having in place processes and procedures for enhancing principal and teacher
performance and professional development in accordance with the regulations;
implementing the curriculum in accordance with the regulations;
ensuring the schools participate in the national assessment program in accordance
with the regulations;
ensuring that the authority has a school improvement framework in accordance with
the regulations and that each school develop, implement, publish and review a
school improvement plan in accordance with the regulations;
compliance with relevant disability discrimination laws;
providing information in accordance with regulations.
These requirements reflect the reform areas which require consistent national effort by all
education authorities.
The information requirements that may be included in regulations include information in
relation to a schools census, national data collection, research on schools/school
education, relating to school improvement plans or an authoritys implementation plan,
administration and operation of schools, student reports to parents and making publicly
available information about a school.
Before any such regulations are made, the Minister must have regard to any relevant
arrangement of approved authorities for government schools.
Clause 78 - Ongoing funding requirements for approved authorities
This clause sets out the ongoing funding requirements for an approved authority for a
school. These requirements are:
dealing in accordance with the regulations, with any payable recurrent funding for
participating and non-participating schools and capital and special circumstances
funding;
complying with requirements prescribed by the regulations in relation to monitoring
the authoritys compliance with the Act and any implementation plan.
If the approved authority is approved for more than one participating school, the ongoing
funding requirements also include:
distributing all recurrent funding for participating schools, or received from a State or
Territory, in accordance with a needs-based funding arrangement in accordance
with the regulations; and
complying with the requirements regarding implementation plans under Part 7 of the
Act.
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Clause 79 - Limitation on approval
An approved authority is approved only for a school, a location of a school and a level of
education at that location, that is specified in the approval.
Clause 80 - Variation or revocation of approval on application
This clause allows the approved authority to apply, in writing, for the authoritys approval to
be varied or revoked.
The Minister may vary the authoritys approval for one or more schools only if the Minister
is satisfied that the requirements referred to in paragraph 73(1)(b) are, and will continue to
be, satisfied.
The Minister may revoke the authoritys approval.
Any variation or revocation must specify the day it takes effect. That day may be earlier
than the day the Minister varies or revokes the approval.
Clause 81 - Variation or revocation of approval on Minister's own initiative
This clause provides for the variation or revocation of approval of an approved authority on
the Ministers own initiative. The Minister may vary or revoke an approved authoritys
approval for one or more schools if the Minister is satisfied that:
the approved authority does not comply, is not complying, or has not complied with,
the basic, ongoing policy or ongoing funding requirements; or
the approved authority is not complying or has not complied with any other
condition to which the approval is subject; or
varying or revoking the approval is in the public interest; or
for an approved authority for government schools - the State or Territory has not
complied with certain specified conditions for financial assistance applicable to
States and Territories.
In varying or revoking an approval, the Minister must have regard to any relevant
arrangement of the approved authority. Where dispute mechanisms are provided under
the relevant arrangements, these would be pursued prior to the Minister considering
variation or revocation of approval.
These decisions are reviewable, except decisions made by the Minister on the basis of the
public interest. This public interest power is non-delegable (see clause 129(2)(d)). If the
Minister makes a decision on the basis of the public interest, a report must be laid before
each House of the Parliament dealing with the decision.
If the Minister is satisfied that a school has ceased to provide primary or secondary
education, the Minister may either:
if the authority is approved for only that school - revoke the authoritys approval
if the authority is approved for other schools as well - remove the school from the
approval.
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The Minister may vary an authoritys approval for one or more schools only if the Minister
is satisfied that the requirements in paragraph 73(1)(b) are, and will continue to be,
satisfied in relation to the varied approval.
Any variation or revocation must specify the day it takes effect. That day may be earlier
than the day the Minister varies or revokes the approval.
Division 3 - Approving block grant authorities
Clause 82 - Application for person to be approved as a block grant authority
This clause provides that a person may apply to be an approved block grant authority.
The application must specify the schools for which the application is made. The schools
may be specified by referring to the approved authority for the school.
Clause 83 - Approval of person
This clause provides that the Minister may approve a person as a block grant authority for
one of more schools if the person has made an application and the Minister is satisfied
that the requirements set out in clauses 84 and 85 will be satisfied. Approval may be
subject to conditions and the approved authority must comply with such conditions.
An approval must specify the day on or after which the approval is in force. That day may
be earlier than the day the approval is given, but may be earlier than 1 January of year in
which the application is made only if special circumstances apply.
The Minister must not approve a person as a block grant authority for a school, if another
block grant authority is already approved for the school.
Clause 84 - Basic requirements for approval
This clause sets out the basic requirements for approval as a block grant authority,
including being a body corporate, being a not-for-profit organisation, being financially
viable and being a fit and proper person.
The clause also sets out a number of matters that the Minister may have regard to in
determining whether a person satisfies these requirements.
Another basic requirement is for each school specified in the approval, the block grant
authority has written permission of the approved authority for the school to receive capital
funding that is payable under Division 2 of Part 5.
Clause 85 - Ongoing requirements for approval
This clause sets out the ongoing requirements for an approval of a block grant authority.
These requirements are:
dealing, in accordance with the regulations, with financial assistance that is payable
under Division 2 of Part 5;
complying with requirements prescribed by the regulations in relation to monitoring
the authoritys compliance with the Act;
providing information in accordance with the regulations.
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The information requirements that may be included in regulations include providing
information relating to the administration and operation of a school and providing
information to the public about a school.
The financial assistance requirements that may be included in regulations include
specifying how financial assistance is to be allocated in relation to schools and
requirements for review of decisions of the block grant authority on how to allocate
financial assistance.
Clause 86 - Limitation on approval
A block grant authority is approved only for schools specified in the approval or, if the
approval instead specifies an approved authority - the schools for which the approved
authority is, from time to time, approved.
Clause 87 - Variation or revocation of approval on application
This clause allows a block grant authority to apply, in writing, for its approval to be varied
or revoked.
The Minister may vary the approval only if the Minister is satisfied that the requirements
referred to in paragraph 83(1)(b) are, and will continue to be, satisfied.
The Minister may revoke the authoritys approval.
Any variation or revocation must specify the day it takes effect. That day may be earlier
than the day the Minister varies or revokes the approval.
Clause 88 - Variation or revocation of approval on Minister's own initiative
This clause provides for the variation or revocation of approval of a block grant authority
on the Ministers own initiative. The Minister may vary or revoke a block grant authoritys
approval for one or more schools if the Minister is satisfied that:
the authority does not comply, is not complying, or has not complied with, the basic
or ongoing requirements; or
the approved authority is not complying or has not complied with any other
condition to which the approval is subject.
Subclause (3) provides if the Minister is satisfied that a school has ceased to provide
primary or secondary education, the Minister may either:
if the block grant authority is approved for only that school - revoke the authoritys
approval;
if the block grant authority is approved for other schools as well - remove the
school from the approval.
Subclause (4) provides that the Minister may vary a block grant authoritys approval for
one or more schools only if the Minister is satisfied that the requirements in paragraph
83(1)(b) are, and will continue to be, satisfied in relation to the varied approval.
Any variation or revocation must specify the day it takes effect. That day may be earlier
that the day the Minister varies or revokes the approval.
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Division 4 - Approving non-government representative bodies
Clause 89 - Minister may invite a person to apply to be a non-government
representative body
This clause allows the Minister to, in writing, invite a person to apply to be an approved
non-government representative body for a non-government school if the Minister is
satisfied that the person represents the interests of the relevant approved authority and the
person is likely to meet the basic requirements for approval.
The Minister may, in writing, withdraw the invitation at any time before the person makes
an application.
Clause 90 - Application for person to be approved as a non-government
representative body
A person who has been invited to apply to be an approved non-government representative
body for a non-government school may apply to the Minister to be so approved. The
application must specify the schools for which the application is made. The schools may
be specified by referring to the approved authority for the school.
Clause 91 - Approval of person
This clause provides that the Minister may approve a person as a non-government
representative body for a non-government school if the person has made an application
and the Minister is satisfied that the requirements set out in clauses 92 and 93 will be
satisfied. Approval may be subject to conditions and the body must comply with such
conditions.
An approval must specify the day on or after which the approval is in force. That day must
be on or after the day the approval is given.
Clause 92 - Basic requirements for approval
This clause sets out the basic requirements for a non-government representative body for
a non-government school, including being a body corporate, being a not-for-profit
organisation, being financially viable and being a fit and proper person.
The regulations may prescribe matters that the Minister may or must have regard to in
making a decision under this clause.
Clause 93 - Ongoing requirements for approval
This clause sets out the ongoing requirements for a non-government representative body
for a non-government school. These requirements are:
the body represents the interests of the relevant approved authority;
dealing, in accordance with the regulations, with funding for non-government
representative bodies;
complying with requirements prescribed by the regulations in relation to monitoring
the authoritys compliance with the Act;
providing information in accordance with the regulations.
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Clause 94 - Limitation on approval
A non-government representative body is approved only for schools specified in the
approval or, if the approval instead specifies an approved authority - the schools for which
the authority is, from time to time, approved.
Clause 95 - Variation or revocation of approval on application
This clause allows a non-government representative authority to apply, in writing, for its
approval to be varied or revoked.
The Minister may vary the approval only if the Minister is satisfied that the requirements
referred to in paragraph 91(1)(b) are, and will continue to be, satisfied.
The Minister may revoke the approval.
Any variation or revocation must specify the day it takes effect. That day may be earlier
than the day the Minister varies or revokes the approval.
Clause 96 - Variation or revocation of approval on Minister's own initiative
This clause provides for the variation or revocation of approval of a non-government
representative body for a non-government school on the Ministers own initiative. The
Minister may vary or revoke a non-government representative bodys approval for one or
more schools if the Minister is satisfied that:
the body does not comply, is not complying, or has not complied with, the basic or
ongoing requirements; or
the approved body is not complying or has not complied with any other condition to
which the approval is subject.
Subclause (3) provides that the Minister may vary a non-government representative bodys
approval only if the Minister is satisfied that the requirements in paragraph 91(1)(b) are,
and will continue to be, satisfied in relation to the varied approval.
Any variation or revocation must specify the day it takes effect. That day may be earlier
that the day the Minister varies or revokes the approval.
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Part 7 -- Implementation plans
Clause 97 - Guide to this Part
This clause provides an outline of Part 7 of the Bill which deals with implementation plans.
Clause 98 - Application of this Part to approved authorities for more than one
participating school
This clause states that Part 7 applies only in relation to approved authorities for more than
one participating school.
Clause 99 - Approved authority must have an implementation plan
This clause requires all approved authorities with responsibility for more than one
participating school to have an implementation plan.
The clause also sets out requirements in relation to the implementation plan, including that
it must set out activities, programs and initiatives that will be undertaken by or on behalf of
the approved authority to achieve the objects of the Act and the outcomes for school
education.
The implementation plan must relate to a period of at least 6 years.
For participating States and Territories, the requirements for an implementation plan will
be satisfied by the finalisation of their bilateral agreement with the Commonwealth. For
other approved authorities with more than one school, it may be met as part of an agreed
Memorandum of Understanding. In addition to outlining the activities, programs and
initiatives that will be undertaken, implementation plans will also outline implementation
milestones and timelines, performance indicators to track progress, feedback and
evaluation mechanisms, and any other requirement prescribed by the regulations.
Approved authorities will also be required to review and publish their implementation plans
on a regular basis, and will be expected to consult with parents and the school community
in the development of their implementation plan.
Clause 100 - Approved authority must be able to implement implementation plan
properly
This clause states that an approved authority must ensure it has in place suitable
structures and practices relating to governance and management to properly implement its
implementation plan.
Clause 101 - Period of implementation plan
This clause requires an approved authority to make a new implementation plan at least
once every 6 years.
Clause 102 - Review of implementation plan
This clause requires an approved authority to review its implementation in accordance with
the regulations.
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The review must evaluate whether the implementation plan continues to comply with
clause 99 and remains up to date. It further provides that if the implementation plan
requires the outcomes of an activity, program or initiative to be measured, that the review
consider the outcome of the activity, program or initiative and whether the intended
outcome is being, or is likely to be, achieved.
The approved authority must update the implementation plan if, after conducting a review,
the approved authority has concluded that the intended outcome of the activity, program or
initiative is not being, or is not likely to be achieved.
Clause 103 - Keeping implementation plans up to date
This clause provides that an approved authority must ensure that its implementation plan
is kept up date. In keeping an implementation plan up to date the approved authority
should have regard to the progress of activities, programs and initiatives set out in the
implementation plan and the result of any reviews of the implementation plan that have
been undertaken.
Clause 104 - Publication of implementation plan
This clause provides that an approved authority must publish its up to date implementation
plan, in a form that is readily accessible to the public, with an example of a readily
accessible form being publication on the authoritys website.
The clause also provides that an approved authority must publish a report of any review
conducted under clause 102, in a form that is readily accessible to the public and as soon
as practicable after the review is conducted.
Clause 105 - Minister may give a direction in relation to an implementation plan
This clause provides that the Minister may give an approved authority a written direction in
relation to its implementation plan and that in deciding to give such a direction, the Minister
must have regard to certain matters including:
any relevant arrangement of the authority - including, for example, the National
Education Reform Agreement, a bilateral agreement between the Commonwealth
and a State under the National Education Reform Agreement, or a memorandum of
understanding in relation to the education reform between the Commonwealth and
a non-government school system;
whether the approved authoritys implementation plan complies with clause 99;
whether the activities, programs and initiatives set out in the implementation plan
are being undertaken in accordance with the implementation plan; and
whether the authority is complying with the requirements of the Act in relation to
implementation plans.
The approved authority must comply with any such direction.
The giving of a direction under this clause is a reviewable decision. Further, if the Minister
gives a direction under this clause, a report must be laid before each House of the
Parliament dealing with the direction.
Directions that may be provided under this clause will primarily be on the basis of ensuring
compliance by an approved authority meeting the commitments contained within its
40
implementation plan. Circumstances may also arise where the Minister might need to give
direction to an approved authority to alter its implementation plan to take account of
changes to relevant arrangements or decisions by the Ministerial Council.
The note explains that the regulations may prescribe other matters the Minister may or
must take into account when deciding whether to give a direction.
It is envisaged that for participating States and Territories the Minister would not invoke the
powers under this provision until all the dispute resolution processes under the National
Education Reform Agreement and any bilateral agreements under that Agreement were
exhausted.
Clause 106 - Requirement to consider relevant arrangements before making
regulations
This clause provides that, before regulations are made for the purposes of this Part, the
Minister must have regard to relevant arrangements of approved authorities for any
schools.
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Part 8 -- Actions Minister may take for failure to comply with
this Act, and to require amounts to be repaid
Division 1 - Guide to this Part
Clause 107 - Guide to this Part
This clause provides an outline of Part 8 of the Bill which deals with actions the Minister
may take for failure to comply with the Act and to require amounts to be repaid.
Division 2 - Actions Minister may take for failure to comply with this Act,
and to require amounts to be repaid
Clause 108 - Application of Division for failure to comply with this Act
This clause provides that this Division applies to a State or Territory if a State or Territory
fails to comply with the relevant conditions of financial assistance, if an approved authority
or block grant authority for one or more schools located in the State or Territory, or a non-
government representative body for a non-government school does not comply, is not
complying or has not complied with relevant basic and ongoing requirements for approval.
The Division also applies to a State or Territory if an approved authority or block grant
authority for one or more schools located in the State or Territory, or a non-government
representative body for a non-government school breaches a condition to which the
authority or bodys approval is subject.
Clause 109 - Application of Division when amounts are required to be repaid
This clause states that this Division applies to a State or Territory if the Commonwealth
makes an overpayment, or a recoverable payment, under the Act to the State or Territory.
The Division also applies to a State or Territory if an amount was paid to the State or
Territory, or to an approved authority or block grant authority for one or more schools
located in the State or Territory, under other specified Acts, which were in excess of the
amount that the State, Territory or authority was entitled to receive under those other Acts,
and the whole or a part of that amount has not been repaid.
The Division also applies to a State or Territory if an amount of capital funding is paid to
the State or Territory for a block grant authority or capital grants authority for a school, the
amount is spent as capital expenditure, the school ceases to provide primary or secondary
education and the regulations prescribe that the amount is recoverable.
Clause 110 - Actions the Minister may take
This clause provides for actions that the Minister may take in relation to a State or Territory
to which the Division applies. The actions are that the Minister may:
determine in writing that the State or Territory pay a specified amount to the
Commonwealth, subject to any limit prescribed by the regulations;
determine that an amount of financial assistance payable to the State or Territory
under the Act is reduced by a specified amount; subject to any limit prescribed by
the regulations;
delay further payment (or part of a payment) to the State or Territory under the Act.
42
In taking any such action, in relation to a State or Territory, the Minister must have regard
to any relevant arrangement of the State or Territory.
An amount may be reduced or a payment delayed:
for one or more schools for a year; or
for an approved authority for a school for a year; or
for a capital grants authority or a block grant authority for a school for a year; or
for a non-government representative body for a non-government school for a year.
Decisions under this clause are reviewable decisions.
The clause provides that a determination by the Minister is not a legislative instrument.
This provision is for the sake of clarity and does not affect the legal character of such a
determination, which would not be a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 111 - Effect of determination under paragraph 110(1)(a) or (b)
This clause provides that if the Minister determines under paragraph 110(1)(a) that a State
or Territory pay an amount to the Commonwealth then, subject to any regulations made for
the purposes of clause 24, that amount is a debt due by the State or Territory to the
Commonwealth, and may be recovered by the Minister in a court of competent jurisdiction.
If the Minister determines under paragraph 110(1)(b) that the amount payable to a State or
Territory under the Act is to be reduced by a specified amount for one or more schools, for
an approved authority, a capital grants authority or a block grant authority for a school for a
year or for a non-government representative body for a non-government school for a year,
then the amount that is payable to the State or Territory for that school, authority or body
for the year under Division 2 or 5 of Part 3, Part 4, subsections 67(1) and (2) and Divisions
3 and 4 of Part 5 (as the case requires), is reduced by the specified amount.
Division 3 - Recoverable payments
Clause 112 - Recoverable payments
This clause provides that the Commonwealth is taken to have the power to make a
recoverable payment and money for the recoverable payment is appropriated accordingly.
This ensures that where the Commonwealth makes a payment in purported reliance on
the Act, but that payment is in fact made in circumstances where there is no legal authority
to do so, the payment is still legally valid.
Clause 113 - Reports about recoverable payments
This clause provides that the Secretary must include in the Departments annual report for
a financial year specified details of any recoverable payments:
that departmental officials are aware were paid during that financial year;
that departmental officials became aware during the financial year that were paid
during an earlier financial year.
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It is often the case that the circumstances giving rise to a recoverable payment, i.e. a
payment that is not legally supported, will not be readily identifiable, and are not in fact
identified for many years after the payment is made. This clause ensures that when the
Department becomes aware of recoverable payments, it reports them in the year it
becomes aware of them.
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Part 9 -- Miscellaneous
Division 1 - Guide to this Part
Clause 114 - Guide to this Part
This clause provides an outline of Part 9 of the Bill which deals with rules relating to
applications made under the Act, review of decisions under the Act and other
miscellaneous matters.
Division 2 - Rules relating to applications
Clause 115 - Approved form for applications
This clause provides that the Minister may approve a form for applications made under the
Act and if the Minister does so, any such application must be in the approved form.
Clause 116 - Request for further information
This clause provides that the Minister may, by written notice, request further information be
provided by a person applying under a provision of the Act and specify a period, of at least
28 days for this information to be provided. It also provides that the Minister may refuse to
consider such an application until any such information has been provided and that the
application is deemed withdrawn if the information is not provided within the specified
period.
Clause 117 - Withdrawal of application
This clause provides that a person applying under a provision of the Act may withdraw
their application at any time before the Minister makes a decision on the application.
Division 3 - Review of decisions
Clause 118 - Reviewable decisions
This clause provides a table of reviewable decisions, outlines the provision under which
each decision is made and the relevant person for each decision. It also provides for the
regulations to prescribe a decision made under a specified provision of the regulations as
a reviewable decision and specify the relevant person for such a decision.
The table of reviewable decisions is intended to be a comprehensive list of the
administrative decisions made by the Minister under the Act, with the exception of some
public interest powers that are exercisable solely by the Minister (to which alternative
accountability processes apply).
Clause 119 - Notice of decision
This clause requires that after a reviewable decision is made that the person who made
the decision must give written notice to the relevant person for the decision, giving the
terms and reasons for the decision and notice of the persons right to have the decision
reviewed, but provides that a failure to do so does not affect the validity of the decision.
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Clause 120 - Internal review of reviewable decisions
This clause provides that a relevant person for a reviewable decision may apply to the
Secretary for review of the decision, unless the decision was made by the Minister or the
Secretary personally. It also provides the requirements of such an application, the persons
entitled to review such a decision, their powers and discretions with respect to carrying out
the review and the possible outcomes of a review. It also provides that the decision on
review is taken to have been made (other than for the purposes of clause 118) under the
provision the original decision was made.
The clause specifies the date on which the decision on review takes effect and the means
by which the relevant person must be notified of the decision.
Clause 121 - Secretary or internal reviewer may require further information from
applicants
This clause provides that the Secretary or internal reviewer may require further information
from a person who has made an application for review and refuse to consider the
application until this information has been provided.
Clause 122 - Review by the Administrative Appeals Tribunal
This clause provides that an application may be made to the Administrative Appeals
Tribunal for review of a reviewable decision made by the Minister or Secretary personally,
or an internal review decision of the Secretary or internal reviewer. However an application
may not be made in respect of a decision to determine a total entitlement for an approved
authority for a year if the amount of financial assistance to which the determination relates
is transitional recurrent funding for participating schools. Such transitional funding
determinations are subject to internal review only.
An application may be made only by, or on behalf of, the relevant person for the
reviewable decision.
Division 4 - Miscellaneous
Clause 123 - False or misleading information
This clause provides that where a decision is made under a provision of the Act, and that
decision was based on or took account of information that was false or misleading in a
material particular, then the decision may be set aside and a new decision made under the
provision. It also stipulates that the new decision may take effect from any day determined
by the person making the decision (including a day that is earlier than the day the original
decision was made).
Clause 124 - Secretary may arrange for use of computer programs to make
decisions
This clause provides that the Secretary may arrange for the use, under the Secretarys
control, of computer programs for any purposes for which the Minister may make decisions
under the Act. A decision made under such an arrangement, is, for the purposes of the Act
(except clause 120 and paragraph 122(1)(a)) taken to be a decision may by the Minister
personally.
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Clause 125 - Making records of, using, disclosing or publishing protected
information
This clause provides that the Minister may
make a record of, use, or disclose protected information (including protected
information that is personal information) in accordance with the regulations;
impose conditions on any record, use or disclosure of protected information; and
publish, in any manner he or she thinks fit, protected information (except personal
information).
Regulations may prescribe the person or body to whom protected information may be
disclosed, the purposes for which protected information may be recorded, used, or
disclosed and conditions (other than conditions determined by the Minister) on any record,
use or disclosure of protected information.
Clause 126 - Appropriation
This clause provides that the Consolidated Revenue Fund is appropriated for the purposes
of making payments of financial assistance under the Act to a State or Territory in
accordance with determinations made regarding recurrent funding for schools and capital
funding for block grant authorities.
Funding for capital grants authorities and non-government representative bodies, and
funding for special circumstances payments, would not be appropriated under the Act, and
would normally be provided for in annual Appropriation Acts.
Clause 127 - Annual report by Minister
This clause provides that the Minister must cause a report to be laid before each House of
the Parliament as soon as practicable after 30 June each year dealing with:
financial assistance paid in the previous year;
the application of any such financial assistance;
any decisions made relating to:
o public interest test in considering whether to approve a person as an
approved authority;
o approved authorities for government schools not taken to satisfy basic
authorities;
o variation or revocation of approval of approved authority in public interest;
o a direction given by the Minister in relation to an implementation plan.
Clause 128 - Review of, or for the purposes of, the National Education Reform
Agreement
The National Education Reform Agreement contains provisions relating to reviews of its
content, including two comprehensive reviews, as well as more numerous reviews into
specified aspects of the agreement and the funding model embedded in it.
This clause provides that where a review is conducted of, or for the purposes of, the
National Education Reform Agreement, the Minister must consider the impact of that
review, if any, on the Act.
47
Clause 129 - Delegation
This clause provides that the Minister may, by written instrument, to delegate all or any of
the Ministers powers and functions under the Act, except for those listed in subsection (2),
to the Secretary or an APS employee in the Department.
The Minister must not delegate the following powers or functions:
determining SES scores by legislative instrument;
powers or functions relating to public interest test in considering whether to approve
a person as an approved authority;
approved authorities for government schools not taken to satisfy basic
requirements;
variation or revocation of approval of approved authority in public interest.
Further it is provided that the, Secretary may, by written instrument, delegate all or any of
his or her powers and functions under the Act, to an SES employee or acting SES
employee in the Department.
Clause 130 - Regulations
This clause provides that the Governor-General may make regulations prescribing matters
required or permitted by the Act to be prescribed, or necessary or convenient to be
prescribed for carrying out or giving effect to the Act.
The regulations may prescribe certain penalties for offences in the regulations relating to
the requirement to provide information relating to a schools census or making records,
using or disclosing protected information. Also, if a provision of the Act or regulations
permits or requires a decision to be made, the regulations may prescribe matters that the
decision-maker may or must have regard to in making the decision.
The regulations may allow the Minister to determine matters in relation to anything in
relation to which regulations may be made.
The clause provides that despite subsection 14(2) of the Legislative Instruments Act 2003,
the regulations may provide in relation to a matter by applying, adopting or incorporating,
with or without modification, any matter contained in any other instrument or other writing
as in force or existing from time to time. The purpose of this provision is to enable
reference in the regulations to documents prepared and published from time to time by
bodies including the Australian Curriculum Assessment and Reporting Authority,
Australian Institute for Teaching and School Leadership and the Australian Bureau of
Statistics (ABS), including documents prepared for and endorsed by the Standing Council
on School Education and Early Childhood. Such documents include documents relating to
the curriculum, professional teacher and teacher training standards, action plans and
programs to address student disadvantage (e.g. Aboriginal and Torres Strait Islander
Education Plan), and various ABS indices that may be relevant to determining amounts of
indexation under the Act.
Before any regulations are made, the Minister must consult the Ministerial Council.
48
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
AUSTRALIAN EDUCATION BILL 2012
Incorporating amendments to be moved on behalf of the Government
The Bill, incorporating amendments to be moved on behalf of the Government, 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 amendments
Recognising through the Preamble that a childs educational opportunities should be
determined by their aspirations rather than their background, the Bill establishes a broad
framework to enhance the performance of Australias schools so that they are fair,
equitable and high-performing.
This includes a national goal of ensuring that Australias schools are both highly equitable
and of a high quality, and therefore capable of ensuring that Australias educational
performance results in Australia being in the top five in reading, writing, mathematics and
science by 2025 in recognised international testing.
In order to achieve this goal, the Australian Government commits to work with States,
Territories and the non-government school sector to implement a series of reforms under
the National Plan for School Improvement.
The Australian Education Bill provides the legislative framework at a Commonwealth level
that sets out the broad reform directions for Australian schooling to reach the 2025 goals,
the details of Commonwealth needs-based funding arrangements for government and
non-government schools to support those goals, and the reform directions under the
National Pan for School Improvement.
All recurrent Commonwealth funding for schooling will be delivered through fair and
transparent needs based arrangements, providing new investment to support reforms that
will help to improve each student's achievements at school. A new Schooling Resource
Standard will deliver a per student level of funding based on current funding levels for high
achieving, efficient schools. On top of this base amount of funding, additional funding will
be provided to meet the costs of helping a child overcome disadvantage.
The evidence based reforms in the National Plan for School Improvement are focused on
quality teaching, quality learning, transparency and accountability, meeting student need
and empowering school leadership.
Human rights implications
The Bill promotes the right to equality and non-discrimination, the right to education and
the rights of people with disability in the context of education, and the right to the
49
enjoyment of just and favourable conditions of work, in the context of school education and
teaching.
Right to equality and non-discrimination
The right to equality and non-discrimination are found throughout the treaties, including
Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR),
Article 2(2) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and Article 2 of the Convention on the Rights of the Child (CRC). The right to
equality and non-discrimination confirms that all people are equal and deserving of the
same respect. It recognises that people may need to be treated differently in order to
achieve equality, for example, by targeting disadvantage.
In particular, Article 2 of the CRC requires the rights in the Covenant will be exercised
without discrimination of any kind as to race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
The right to equality and non-discrimination is promoted as the Bill contains a commitment
to provide funding to support education based on need. This need will include the given
circumstances of certain categories of Australian students who currently experience
educational disadvantage. The aim of this different treatment is designed to support the
overall participation, through access to education, in the social, civil, political, economic
and cultural rights given under United Nations Conventions.
Right to education
The right to education can be found in Article 13 of the ICESCR, Articles 28 and 29 of the
Convention on the Rights of the Child, Article 5(e)(v) of the Convention on the Elimination
of All Forms of Racial Discrimination (CERD), Article 10 of the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), and Article 24 of the
Convention on the Rights of Persons with Disabilities (CRPD). The rights of people with
disability is also found in Article 24 of the CRPD.
The right to education recognises the important personal, societal, economic and
intellectual benefits of education. It requires education be available, safe, and
appropriately resourced, dependent on the need of the child.
The United Nations Committee on Economic, Social and Cultural Rights has stated that
education should be available, ,,accessible to all, especially the most vulnerable groups
without discrimination on any of the prohibited grounds, physically accessible and
economically accessible (General Comment 13).
The right to education and the rights of people with a disability, specifically children, are
promoted as the needs-based system of education funding being implemented through the
Bill is to ensure that all students can be supported by quality education, and that the
disadvantage associated with background is recognised and targeted with additional
support to ensure equity and equality in education outcomes. Additional loadings for
disadvantage are provided for low socioeconomic status, Indigenous students, low English
proficiency, students with disability, school size and school location - recognising the
additional costs for outside metropolitan areas.
This Bill also strengthens the link between funding and school improvement, to improve
the educational outcomes of students across the five reform areas. Each State, Territory,
system and school will have its own plan for how it will implement these reforms through
50
implementation plans and school improvement plans. What this will mean for schools will
vary from school to school, depending on the needs of the students. Schools will be able
to decide what they need to do for their students, using additional funding being provided,
but it could include teaching support like working with literacy and numeracy specialists, or
schools could choose to employ more teachers, teacher aides, specialist support staff or
schools can also focus investment in training, mentoring and release time for teachers,
including professional development.
The Bill further promotes the rights of students with disability with the requirement for all
approved authorities for a school or schools to ensure compliance with relevant disability
discrimination laws of the Commonwealth and States/Territories. This is not a new
requirement but has been made more explicit in the legislation.
Right to the enjoyment of just and favourable conditions of work
While the Commonwealth is not responsible for the training and development of teachers
(particularly those already with relevant skills and expertise), it is the Commonwealths
intention to ensure teachers have the necessary skills and support to ensure that they are
able to deliver high quality teaching to students, as part of promoting the right to education,
and to achieve the governments goals of high equity and quality education. Specifically,
the National Plan requires that the work of teachers will reflect rigorous professional
standards and best practice.
This engages Article 7 of the ICESCR, which recognises the right to just and favourable
conditions of work.
Under the Bill, States and Territories are required to implement (or continue to implement)
national policy initiatives relating to school education in accordance with regulations,
recognising the regulatory responsibilities of States and Territories for school education.
These national policy initiatives are outlined as including overseeing the State/Territory
school education systems, supporting work of national education institutions, and
improving the quality of teachers (including through higher professional standards, better
professional development and nationally consistent registration processes). These national
policy initiatives are overseen by the Standing Council on School Education and Early
Childhood established under the Council of Australian Governments to consider school
education matters.
Higher professional standards, demonstrated through appropriate levels of professional
knowledge, practice and engagement will be supported through the framework provided by
the Australian Professional Standards for Teachers. The Standards set out a public
statement, defining and outlining the work of teachers and teacher quality. This structured
guidance describes the recommended professional training and evaluation trajectory. The
Bill will support the implementation of the Standards to further assist teachers in informing
their development of professional learning and guide teachers to be able to better support
their students. The additional clarity will provide developmental direction for teachers and
will guide qualification for professional registration, providing transparency to a fair, just
and favourable work-environment.
51
The Bill also includes an ongoing requirement for funding for all approved authorities,
including States and Territories for government schools, and authorities for non-
government schools, to have processes in place for enhancing principal and teacher
performance and professional development, and to implement the curriculum. These are
not new requirements for schools, but recognise the key importance of enhancing teacher
quality in improving student outcomes.
The Hon Peter Garrett MP AM,
Minister for School Education,
Minister for Early Childhood and Youth
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