Details of the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 2) Regulations 2019

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 2) Regulations 2019.

 

Section 2 - Commencement

 

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

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on a program that will be administered by the Community Grants Hub on behalf of the Department of Education (the department).

 

New table item 358 provides legislative authority for government spending on the Destination Australia Program (the Program) to provide scholarships for students to increase the number of international and domestic students studying in regional and remote Australia. For the purposes of this program, regional and remote Australia will be defined by the Australian Bureau of Statistics' Australian Statistical Geography Standard Remoteness Structure categories including inner regional, outer regional, remote or very remote.

 

The Prime Minister announced the establishment of the Destination Australia Program as a part of the Planning for Australia's Future Population plan on 20 March 2019.

 

Eligible tertiary education institutions (registered higher education providers and registered training organisations) will apply for grants and scholarships through an annual competitive process, administered by the Community Grants Hub on behalf of the department in accordance with approved Grant Opportunity Guidelines. Funding of $15,000 per student per year will be provided to the institutions, who will then administer the scholarships to international and domestic students who meet eligibility and admission requirements. Institutions will also receive $1500 per scholarship award for promotional and administrative assistance.

 

 

Applicant institutions will be assessed against selection criteria.  

 

As part of the selection criteria, institutions will be required to:

*         describe how the scholarship program will align with the strategic priorities of the institution;

*         demonstrate how the grants funding will contribute to growth and quality within the institution and community;

*         demonstrate capacity and capability to provide effective student support beyond minimum legislative requirements; and

*         describe how they will promote and market the scholarship program including attracting high achieving students.

Successful institutions will be able to offer scholarships to new students who are enrolled at and study at a registered higher education provider or registered training organisations at a regional or remote campus, and who are studying one of the following qualification levels: Certificate IV, Accredited Diploma, Advanced Diploma or Associate Degree, Bachelor Degree, Bachelor Honours Degree, Graduate Certificate or Graduate Diploma, Masters or Doctoral degrees.

 

Institutions will be able to apply for scholarships for each year of the duration of a student's qualification, provided the student continues to meet the criteria for funding each year.

 

The Program will be managed in accordance with the Commonwealth Grants Rules and Guidelines 2017 (CCRGs), the department's Secretary Instructions and delegations on the expenditure of relevant monies, and in accordance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

Final decisions around the allocation of funding will be made by the Minister for Education. In deciding the final allocation, the Minister may take into account the split between higher education and vocational education and training providers, international versus domestic scholarships, and coverage of jurisdictions across Australia.

 

The Minister's decision is final in all matters, including the approval of the grant, grant funding amount, and the terms and conditions of the grant. Neither the Minister nor the delegate will approve funding unless it is reasonably considered that the grant will work towards the objectives of the Program.

 

Independent review will not be available for decisions under the program. This is because program funding is a finite resource, and an allocation that has already been made to one party would be affected by overturning the original decision in relation to an allocation to another party.

 

Information about the program, for both domestic and international students, including guidelines and eligibility criteria will be available on the international education website: www.education.gov.au/destination-australia. The program guidelines will also be published on GrantConnect and the Community Grants Hub website.

 

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the trade and commerce power (s 51(i))

*         the communications power (s 51(v))

*         the aliens power (s 51(xxix))

*         the social welfare power (s 51(xxiiiA))

*         the external affairs power (s 51(xxix))

*         the executive power (s 61)

*         the territories power (s 122)

Trade and commerce power

Section 51(i) of the Constitution empowers the Commonwealth to make laws with respect to 'trade and commerce with other countries, and among the States.' The program would provide funding to foster the export of education through the provision of scholarships to international students. The program would also facilitate interstate trade and commerce by providing funding for tertiary education providers in regional and remote areas of a state to provide scholarships to domestic students from other states. Further, the program would provide funding to promote the scholarships and the experience of studying and living in regional and remote areas of a state to persons in other states and overseas. 

Communications power

Section 51(v) of the Constitution empowers the Commonwealth to make laws with respect to 'postal, telegraphic, telephonic and other like services.' The program would provide funding for developing and distributing promotional content using television, radio, internet and telephone services. 

Aliens power

Section 51(xix) of the Constitution empowers the Commonwealth to make laws with respect to aliens. The program would provide funding for scholarships to be paid to international students (that is, students who are not citizens of Australia).

Social welfare power

Section 51(xxiiiA) of the Constitution empowers the Commonwealth to make laws with respect to the provision of certain social welfare benefits, including 'benefits to students.' The program would provide funding for scholarships to be paid to identified students to meet the educational needs of those students.

External affairs power

Section 51(xxix) of the Constitution empowers the Commonwealth to make laws with respect to external affairs, including persons, places, matters or things external to Australia. The program would provide funding for promoting the scholarships and the experience of studying and living in remote and regional areas of Australia to persons who are geographically external to Australia.

Executive power

Section 61 of the Constitution provides for the executive power of the Commonwealth. The program would provide funding for promoting the program.

 

 

Territories power

Section 122 of the Constitution empowers the Commonwealth to 'make laws for the government of any territory.' The program may provide funding to tertiary education providers in regional or remote areas of a territory.

 

 

Statement of Compatibility with Human Rights

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

 

Financial Framework (Supplementary Powers) Amendment (Education Measure No. 2) Regulations 2019

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Destination Australia Program Legislative Instrument

The purpose of the amendment to schedule 1AB of the Financial Frameworks (Supplementary Powers) Regulations 1997 (FF(SP) Regulations) is to ensure there is an appropriate legislative instrument to support expenditure for the Destination Australia Program (the program). This expenditure aligns with the Government's priority to grow international education and promote education in regional and remote Australia.

The Prime Minister announced the establishment of the Destination Australia Program as a part of the Planning for Australia's Future Population plan on 20 March 2019.

The FF(SP) Regulations have been identified as a suitable legislative vehicle to support expenditure for the program. The program aims to grow tertiary education in regional and remote Australian education institutions, build capacity in the regions and enhance regional and remote Australia's share of the benefits of our $35 billion international education industry. It will provide grants to eligible institutions to allocate, administer and promote scholarships for domestic and international students studying in regional and remote Australia. The program will:

*         Provide tertiary education institutions grants to support student scholarships of $15,000 per student per year.

*         Provide tertiary education institutions grants of $1,500 per scholarship awarded per year to support promotion and administration of the program.

Human rights implications

 

Right to education

The Legislative Instrument engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

To the extent that the right to education is engaged, the Destination Australia Program (the program) will provide further incentive and opportunity for international and domestic students to undertake their tertiary education in regional or remote Australia.  The program will also enhance students' awareness of the benefits of regional and remote Australian tertiary education institutions.

The number of program scholarships that tertiary education providers may issue in a year and the maximum amount that students may receive are capped having regard to reasonable, proportionate and necessary constraints on public spending.

 

Article 15, which recognises the right of everyone to take part in cultural life, relates to the right to education under Article 13 of the ICESCR.  Article 15 provides that the right to participate in cultural life includes the benefits to be derived from encouragement and development of international contacts and co-operation in the cultural fields.

The Legislative Instrument broadly engages the right to education as it provides increased opportunity for international and domestic students to undertake their course of study in regional or remote Australia, thereby encouraging the development of greater international contact and cultural co-operation between Australia and the student's country or region of origin.

Conclusion

 

The Legislative Instrument is compatible with human rights as these amendments further advance the right to education, and any positive discrimination toward students undertaking study in regional or remote Australia is reasonable and objective.

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance