Details of the Financial Framework (Supplementary Powers) Amendment  

(Education, Skills and Employment Measures No. 2) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 2) Regulations 2020.

 

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 an initiative that will be administered by the Department of Education, Skills and Employment (the department).

 

New table item 407 establishes legislative authority for government spending on the Destination Australia Cheung Kong Exchange Pilot (the pilot).

 

The pilot aims to provide funding to Australian universities to allow them to provide two-way mobility opportunities for domestic and international university students commencing in semester two of the 2020 academic year. The desired outcome for the pilot is to establish a mechanism that would support a longer-term program and also pave the way for similar collaboration with other major industry partners in the future.

 

The pilot builds on a longstanding partnership with the Cheung Kong Group to support student mobility to and from Australia. Since the 2019 cessation of the Endeavour Leadership Program, there is no mechanism to continue the longstanding partnership with the Cheung Kong Group, which contributed $7.5 million from 2009 to 2019 to student scholarships.

 

In addition to government funding, the Cheung Kong Group will co-fund the pilot targeting a university student exchange and mobility program that would increase the number of students who are able to experience the transformative potential of offshore study.

 

Under the pilot, Australian universities, including private universities, will be eligible to opt-in to receive grants to support their students and students of their partner universities for a short-term opportunity to study in 16 select Asian countries or Australia respectively.

 

The 16 identified countries, selected in consultation with the Cheung Kong Group, are: the People's Republic of China, Hong Kong, Brunei Darussalam, Cambodia, India, Indonesia, Japan, Republic of Korea, Laos, Malaysia, Mongolia, Myanmar, Republic of the Philippines, Singapore, Thailand and Vietnam.

 

The pilot funding will be evenly distributed between those Australian universities that opt-in. Australian universities will undertake their own processes to identify and award individual student scholarships to eligible students.

 

The grants allow Australian universities to offer two-way mobility opportunities, which would support students of Australian universities to study overseas, and support students from overseas partner universities to study in Australia.

 

Each mobility opportunity will be worth between $1,000 to $5,000 to support either short-term mobility, including study tours, or semester exchange, with the Australian university to determine the appropriate scholarship amount per student. The mobility opportunities will be available for both undergraduate and postgraduate university students from semester two of the 2020 academic year. The pilot will end on 31 December 2020.

 

Universities will need to ensure an even allocation of funds and number of opportunities between incoming and outgoing students. There will be flexibility to allow universities to further co-invest, including providing additional funding to their scholars. 

 

The Community Grants Hub within the Department of Social Services will be responsible for managing the pilot, including the following activities:

*         advertising the pilot to all Australian universities;

*         evenly distributing funding to Australian universities that opt-in; and

*         managing grant agreements with those Australian universities.

 

The department and the Cheung Kong Group will enter into an agreement on the implementation and delivery of the pilot. The Cheung Kong Group will have no decision making power over the students or universities who are supported by the pilot. The Minister for Education will be the decision maker for the grant allocation.

 

The department, through the Community Grants Hub, will evenly distribute available pilot funding to each Australian university that elects to participate. Funding will be provided in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).

 

In accordance with the CGRGs, grant guidelines for universities will be developed by the Community Grants Hub, in partnership with the department and the Cheung Kong Group. Grant guidelines and information on the grants awarded will be published on GrantConnect (www.grants.gov.au).

 

To streamline the implementation of the pilot, all Australian universities, including private universities, will be eligible to opt-in to the pilot, removing the need for a formal selection process.

 

The Government has decided to award the pilot funding equally to each participating Australian university that elects to participate. It is not appropriate for this government decision to be subject to independent merits review as these decisions are automatic decisions which apply to any Australian university that participates in the pilot. It is not appropriate for merits review to apply to an automatic decision of this kind which is based on the factual determination of whether a participant is a university.

 

Grant agreements will be administered by the Community Grants Hub who will manage these agreements in consultation with the department. The grants to Australian universities will be administered in accordance with the CGRCs and the conditions of the grants that will be agreed prior to commencement of the pilot.

 

Each participating Australian university will be responsible for awarding the mobility opportunities under criteria agreed with the department and will report all decisions regarding award of the mobility opportunities to the department. Each participating Australian university will use their own, well established, scholarship award processes for making decisions regarding the award of the scholarships, and the department will have no part in determining which students are awarded scholarships.

 

These decisions by universities to award scholarships to students will not be subject to independent merits review. This is because the decisions relate to the allocation of a finite resource, and overturning a decision to allocate funding to one student would affect an allocation that has already been made to another student.

 

The department has had initial discussions with the Cheung Kong Group on the establishment of the pilot, as well as with some trusted stakeholders in the higher education and international education fields.

 

Funding of $0.25 million in 2019-20 will come from Program 2.7: International Education Support, which is part of Outcome 2: Promote growth in economic productivity and social wellbeing through access to quality higher education, international education, and international quality research, skills and training. Details will be set out in the Portfolio Budget Statements 2020-21, Education, Skills and Employment Portfolio. The Cheung Kong Group will contribute approximately $0.7 million in 2019-20.

 

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 aliens power (section 51(xix));

*         the student benefits aspect of the social welfare power (section 51(xxiiiA)); and

*         the external affairs power (section 51(xxix)).

 

Aliens power

 

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to 'naturalization and aliens'.

 

The pilot will provide funding for grants to be paid to students that are not Australian citizens.

 

Social welfare power

 

Section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits, including benefits to students.

 

The pilot will provide funding for grants 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 Parliament to make laws with respect to external affairs. The external affairs power supports legislation with respect to matters or things outside the geographical limits of Australia.

 

The pilot will provide funding for grants to support activities geographically external to Australia (i.e. overseas study).

 

 

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, Skills and Employment Measures No. 2) Regulations 2020

 

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 legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The FF(SP) Act applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.  

 

The Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 2) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to add a new table item 407 to Part 4 of the Schedule.

 

The new table item establishes legislative authority for government spending on the Destination Australia Cheung Kong Exchange Pilot (the pilot). The Department of Education, Skills and Employment has responsibility for the pilot.

 

The pilot is a two-way mobility scheme for domestic and international university students commencing in semester two of the 2020 academic year. Under the pilot, two-way mobility grants will be available for domestic and international students for a mobility experience between Australia and one of 16 identified Asian countries. Each mobility grant will be worth between $1,000 to $5,000 to support either short-term mobility or semester exchange.

 

The Government recognises the increasing need for individuals to access tertiary education to upskill and reskill throughout their life, in order to meet the evolving demands of the labour market. By supporting the brightest young academic minds in Australia and Asia to study at leading universities (both in Australia and overseas), the pilot will allow scholars to gather knowledge and build academic skills which they will bring into the Australian higher education system.

 

Human rights implications

 

This instrument engages the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and supports Article 15(4) of the ICESCR.

 

Table item 407 engages with Article 13(1) of the ICESCR, which states that the parties to the treaty "recognise the right of everyone to education" and "agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms ... education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace." Article 13(2)(c) of the ICESCR is also engaged by this legislative instrument - this Article states that "higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means...".

 

The pilot will support the right of Australian and overseas scholars to access higher education and enable them to undertake study that will assist them to participate in society, an increasingly international labour market and promote understanding and friendship across nations.

 

The pilot will also support open access to higher education for students who otherwise may not be able to afford to undertake overseas study.

 

Table item 407 engages with Article 15(4) of the ICESCR which states that parties to the treaty "recognise the benefits to be derived from the encouragement and development on international contacts and co-operation in the scientific and cultural fields."

 

By supporting Australian and overseas scholars to undertake study at leading Australian and overseas universities, the pilot will support development of international contacts and co-operation in scientific and cultural fields.

 

Conclusion

 

This instrument is compatible with human rights as it promotes the protection of human rights. To the extent, if any, that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance