Details of the Financial Framework (Supplementary Powers) Amendment
(Education, Skills and Employment Measures No. 3) 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. 3) 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 3 of Schedule 1AB (table)

 

This item adds two new table items to Part 3 of Schedule 1AB to establish legislative authority for government spending on certain activities that will be administered by the Department of Education, Skills and Employment (the department).

 

New table item 40 establishes legislative authority for the Government to provide a grant to Anti-Defamation Commission Incorporated (ADC) to expand the delivery of the Click Against Hate (CAH) program to approximately 500 participating primary and secondary schools across Australia by the end of 2023.

 

ADC, which was established in 1979, is a not-for-profit organisation and a registered charity that supports the provision of education programs to Victorian school students. ADC is focused on:

*         monitoring and responding to incidents of bigotry, racism and prejudice;

*         employing instruments of research, fact finding, education and the law to counter racism and discrimination;

*         countering delegitimisation and defamation of Israel and the Jewish people;

*         combating Holocaust denial;

*         developing educational materials to deal with the proliferation of online anti-Semitism, bigotry and hatred;

*         educating the public about the dangers of anti-Semitism and racism in all its forms; and

*         building bridges of understanding and friendship among racial, religious and ethnic groups.

 

CAH is an educational program developed by ADC in 2010. The program is currently delivered by ADC in over 170 primary and secondary schools in Victoria.

 

Explicit education delivered to young people is key to building individual capacity and challenging personal and cultural attitudes that lead to intolerance. Teaching young people to be tolerant, value diversity and be productive members of the community is central to building a cohesive society, which is the basis for a safer and more prosperous Australia.

 

CAH is designed for primary and secondary school students, aligns to the curriculum and focuses on teaching young people to deal with a wide range of issues associated with use of the internet including: identity theft; invasion of privacy; cyber bullying; incitement; defamation; online dangers; YouTube and Facebook reporting; anti-Semitism; Islamophobia; racism; homophobia; freedom of speech; vilification; obscenity; contempt of court; website reliability; and primary and secondary sources. CAH encourages online safety and assists students to develop an understanding of the importance of standing up to hate and intolerance experienced online through discussions, videos, cartoons, memes and informative slides. The program equips young people with strategies and skills to combat hate experienced online, assisting them to take action when it happens to them, or when they see it happening to others.

 

On 14 February 2020, the Deputy Prime Minister and the Minister for Infrastructure, Transport and Regional Development, the Hon Michael McCormack MP, the Treasurer, the Hon Josh Frydenberg MP, and the Minister for Education, the Hon Dan Tehan MP announced funding for the CAH program expansion. Details of the announcement are set out at https://ministers.education.gov.au/mccormack/fighting-racism-and-intolerance.

 

It is anticipated that ADC would expand the delivery of the program free of charge to approximately 500 program cohorts over four years from 2019-20. Qualified and experienced facilitators will deliver the program nationally in schools. Schools will be invited to participate through an expression of interest process until funding is exhausted. Expanding the CAH program will assist tens of thousands of students to develop interfaith understanding and an appreciation of diversity, and provide them with strategies to respond to incidences of intolerance online.

 

Funding for the program expansion will be provided to ADC by way of a non-competitive grant. The administration of the grant will be conducted in accordance with the Commonwealth Grants Policy Framework, including the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). The grant will be administered by the Community Grants Hub managed by the Department of Social Services.

 

Information about the grant will be made available on the Grant Connect website at www.grants.gov.au. ADC will be required to submit a proposal for the delivery of CAH which demonstrates:

*         compliance with the Grant Opportunity Guidelines for the Respectful Interfaith School Education program (which encompasses the CAH program delivery);

*         capacity to expand the delivery of CAH to all jurisdictions; and

*         that ADC's delivery of CAH represents value for money for the Commonwealth.

 

A delegate of the Secretary of the department will be responsible for considering the proposal and approving Commonwealth funding to ADC for the expansion of CAH. Information about the final decision will be available publicly on the Grant Connect website.

 

The grant decision, once made, will be final and not subject to merits review. This is partly because the grant involves an allocation of a finite resource to ADC and overturning the decision to allocate funding to another party would affect the allocation that has already been made to ADC. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.16 of the document What decisions should be subject to merit review?).

 

Further, re-making a decision after entry into an agreement is legally complex, impractical and would result in delays in implementation. Given ADC's ownership of the CAH program and experience in program delivery and that the Government made a decision to award funding to ADC, it is not reasonably foreseeable nor envisaged that any other organisation would receive funding in relation to this initiative.

 

The department has consulted with ADC, which confirmed their interest in taking up this grant opportunity and delivering the intended outcomes. ADC is currently engaging with internal and external experts to develop a detailed proposal on their approach to implementing the expansion of CAH.

 

Funding for the CAH expansion of $3 million over four years from 2019-20 will be included in the 2020-21 Budget. Funding will come from Program 1.5: Early Learning and Schools Support, which is part of Outcome 1. Details will be set out in the Portfolio Budget Statements 2020-21 for the Education, Skills and Employment Portfolio.

 

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

*         the communications power (section 51(v)), and

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

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

CAH will educate participants about the use of the internet and online safety. The program will teach participants about how to deal with particular issues, such as invasion of privacy, which they may encounter in their online activities.

 

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 implementing Australia's obligations under treaties to which it is a party.

 

Australia has obligations relating to the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Article 2 of the CRC provides that States Parties shall take appropriate measures to ensure that the child is protected against all forms of discrimination and punishment on the basis of particular grounds including expressed opinion or belief.

 

Article 29(1) of the CRC obliges States Parties to direct education towards (amongst other things) the development of respect for human rights and fundamental freedoms as well as the preparation of the child for responsible life in the spirit of ... tolerance ... among all people.

 

Article 2 of the ICCPR requires States Parties to take measures to give effect to the rights recognised in that covenant.

 

Article 18 of the ICCPR provides that everyone shall have the right to freedom of thought, conscience and religion.

 

Article 19 of the ICCPR provides that everyone shall have the right to hold opinions without interference as well as the right to freedom of expression. Article 19 recognises that the right to freedom of expression carries with it special duties and responsibilities and may be subject to certain restriction to protect (amongst other things) the rights or reputation of others.

 

Article 2 of the ICESCR provides that States Parties shall take steps to adopt legislative measures to realise the rights within the ICESCR.

 

Article 13 of the ICESCR provides that States Parties 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'. They further agree that 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'.

 

As part of the CAH program, participants will be informed about specific human rights conferred by international instruments to which Australia is a party, such as the right to freedom of thought, conscience, and religion, and freedom of expression. The program will be directed at teaching participants to navigate the balance between freedom of expression and hate speech with the view to not only educating participants but encouraging tolerance, respect for human rights and fundamental freedoms.

 

New table item 41 establishes legislative authority for the Government to provide a one-off grant to DemoDAIRY Foundation Limited (the Foundation) to support school students from the Corangamite Shire or with an affiliation with the Port Campbell or Timboon communities with scholarships from the Powell Legacy Fund. The scholarships will enable eligible students to undertake courses of study offered by a recognised and qualified education provider that result in a recognised accreditation or qualification (such as undergraduate, postgraduate or TAFE studies), or work experience or work integrated learning.

 

The Foundation supports the existing dairy industry, training organisations and individuals in South Western Victoria by building capacity and leadership in dairy farm business management and promoting innovative learning approaches and new technologies. The Foundation provides funding for tertiary training in dairy related sciences through grants, scholarships and fellowships, and makes grants to individuals for education or research relating to dairy sciences. The Foundation seeks a sustained improvement in farm profitability and farmer lifestyles.

 

The Powell Legacy Fund is a new initiative of the Foundation that will honour the work of the late Ross and Andy Powell who were involved in volunteering organisations related to education and agriculture in the Corangamite Shire. The Powell Legacy Fund will provide opportunities for students in a district where they may not otherwise have the opportunity to further their education due to financial hardship. This will contribute to the Government's objective to ensure all Australian students have access to high quality education.

 

Funding for the Powell Legacy Fund was announced by the Minister for Education, the Hon Dan Tehan MP, on 8 April 2020. Details of the announcement are set out at https://ministers.dese.gov.au/tehan/powell-legacy-fund.

 

The Powell Legacy Fund will support eligible school students to further their skills and improve their learning outcomes to be able to contribute to their regional communities. The scholarships will support students to undertake:

*         courses of study offered by a recognised and qualified education provider that result in a recognised accreditation or qualification across any discipline (for example, postgraduate, undergraduate degrees or TAFE courses);

*         other formal education or training programs of significant duration (more than two or three day courses) offered by a recognised and qualified education provider that result in a recognised accreditation or qualification; or

*         work experience or work integrated learning as a component of a relevant course of study offered by a recognised and qualified education provider that results in a recognised accreditation or qualification.

 

It is anticipated that each year two $3,000 scholarships would be awarded to two school students, up to $9,000 over three years per student. It is anticipated that the Australian Government's grant, industry contributions and assets held by the Foundation would allow the Powell Legacy Fund to run for around 10 years.

 

As with other grants administered by the Foundation, a sub-committee made up of representatives from Port Campbell Surf Life Saving Club and Timboon P12 School will select successful applicants in accordance with a set of eligibility guidelines which will be publicly available on the Foundation's website. For example, applicants must be residents of the Corangamite Shire or demonstrate that they have some affiliation with the Port Campbell or Timboon communities. The sub-committee will also take into consideration significant financial hardship. The Foundation Board will then make decisions to award scholarships based on the advice of the sub-committee.

 

The Powell Legacy Fund aligns with current government priorities to increase tertiary participation rates in regional and remote Australia and improve post-school learning outcomes.

 

Funding of $100,000 in 2019-20 will come from the Quality Outcomes subprogram under Program 1.5: Early Learning and Schools Support, which is part of Outcome 1. Details are set out in the Portfolio Additional Estimates Statements 2019-20, Education, Skills and Employment Portfolio at page 39. 

 

Quality Outcomes is a long-standing, discretionary funding program for initiatives of importance to the Government. The Minister for Education approves funding allocations under Quality Outcomes. The objectives of the Powell Legacy Fund align with the intention of Quality Outcomes to provide a discretionary funding source to support improved learning outcomes of Australian school students.

 

Funding will be provided by way of a one-off, closed, non-competitive grant to the Foundation, as it has a well-established record of delivering grants and scholarships. The process for awarding the grant to the Foundation will be conducted in accordance with the Commonwealth Grants Rules and Guidelines 2017. The department will engage the Community Grants Hub to develop grant opportunity guidelines, which will be made available on the GrantConnect website at www.grants.gov.au. The Foundation will be invited to apply for the grant.

 

The final funding decision will be the responsibility of the Minister for Education or the Minister's delegate, in accordance with the department's Accountable Authority Instructions and the Public Governance, Performance and Accountability Act 2013. The decision to award the grant will be reported on the GrantConnect website. Independent merits review will not be available for the grant to the Foundation as it is a finite resource providing a one-off payment to a certain provider.

 

Decisions made by the Foundation to allocate funding from the Powell Legacy Fund will also 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 Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.16 of the document What decisions should be subject to merit review?).

 

Due to the compressed timelines to enable the Foundation to administer this grant in mid-2020, the finite funding available and the restricted geographical location involved, consultation was limited to discussion with key stakeholders including the Foundation, The Vet Group, Timboon P12 School, Port Campbell Surf Life Saving Club and the Powell family, who have separately contributed $50,000 to the Powell Legacy Fund. All parties were supportive of the initiative and are working together to provide opportunities for the youth in the region who may not otherwise have been able to pursue further education beyond school.

 

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

*         the 'benefits to students' aspect of the social welfare power (section 51(xxiiiA)); and

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

 

Social welfare power

 

The social welfare power in 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 Powell Legacy Fund will benefit students by giving them access to further training and education to further their skills and improve their learning outcomes.

 

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 implementing Australia's obligations under treaties to which it is a party.

 

Australia has obligations under the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR). Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Article 6(1) of the ICESCR recognises the right to work, and Article 6(2) requires the States Parties to take steps to achieve the full realisation of that right, including 'technical and vocational guidance and training programmes'. The Powell Legacy Fund supports the right to work by helping individuals to pursue their chosen career, and to develop the skills needed to do so.

 

Article 13(2) of the ICESCR recognises the right to education. Article 13(2) requires that States Parties take steps to achieve the full realisation of the right to education, including making 'higher education ... equally accessible to all, on the basis of capacity, by every appropriate means ... '. The Powell Legacy Fund will improve access to education and training by providing scholarships for individuals to pursue education and training.

 

Australia also has obligations under the International Labour Organization's Convention concerning Employment Policy [1970] ATS 17 (ILO Convention 122), particularly Articles 1 and 2, which are about promoting full, productive and freely chosen employment. In particular, Article 1.2(c) creates an obligation to implement 'an active policy' that 'aims at ensuring that ... there is a freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin'. The Powell Legacy Fund will promote full, productive and freely chosen employment by supporting individuals to pursue their chosen career through financial scholarships.

 

Australia also has obligations related to vocational guidance and training under Articles 1, 2 and 4 of the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources [1986] ATS 2 (ILO Convention 142). Article 2 refers to the establishment and development of 'open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training, whether these activities take place within the system of formal education or outside it'. The Powell Legacy Fund will improve access to education and training, relevant to implementing Articles 1, 2 and 4 of the ILO Convention 142.

 

Item 2 - 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 certain activity that will be administered by the department.

 

New table item 415 establishes legislative authority for government spending on the Phonics Targeted Assistance Program for Disadvantaged Schools (the Program).

 

The Program is one of the three elements of the Government's $10.8 million election commitment to introduce a free voluntary phonics health check for Year 1 students (the National Phonics Check) announced on 10 May 2019. The commitment is part of the Government's Our Plan for Education package. Details of the announcement are set out at https://www.liberal.org.au/latest-news/2019/05/10/our-plan-education.

 

The three elements of the National Phonics Check are:

*         an online Phonics Check, which will be based on the UK Phonics Screening Check, and digitised and adapted for the Australian context;

*         an online Phonics Hub, which will provide professional learning materials for teachers and resources for families, to complement the Phonics Check; and

*         the Program, which will provide curriculum officers or phonics coaches to support up to 100 disadvantaged schools in teaching phonics and literacy, including the development of tailored professional learning resources.

 

Phonics and phonemic awareness are part of the Australian Curriculum and an important aspect of learning to read. Phonics instruction teaches children to decode words by sounds as they learn the connections between the letters of written texts and the sounds of spoken language. Systematic instruction in phonics during the early years of schooling is an essential foundation for teaching children to read. Students need to be assessed and appropriately supported to ensure they have developed these skills.

 

Currently, the first indication of how students are tracking nationally in reading comes in Year 3 through the National Assessment Program - Literacy and Numeracy (NAPLAN). By this stage, around five per cent of students are already not meeting national minimum standards in this critical area. While states and territories already invest in early years literacy assessments, there are gaps in the existing assessments, particularly in phonics.

 

The introduction of a Phonics Check and online Phonics Hub is supported by findings from previous literacy reviews, which recommended systematic and direct phonics instruction as the most effective way of teaching young children to read.

 

The National Year 1 Literacy and Numeracy Check Expert Advisory Panel (the Expert Advisory Panel) found that while states and territories had a range of early years and on-entry literacy assessments, there was no consistency in how phonics and phonemic awareness are assessed. The Expert Advisory Panel recommended the introduction of a national Year 1 literacy check that prioritises the assessment of phonics knowledge.

 

The National Phonics Check aims to ensure students struggling with learning to read are identified early using evidence-based assessment tools, and that teachers are appropriately trained and resourced to act on results. The results of the online Phonics Check will allow for teachers to more quickly and easily assess if they have students who may need additional help with literacy. The check takes 5-10 minutes of one-on-one time between a student and a teacher. Teacher feedback on the Phonics Check that was trialled in South Australia before its full implementation was favourable. Teachers found they were given information about where their students were up to and were able to tailor learning to student ability.

 

Many jurisdictions are already using or intend to use the Phonics Check: South Australia runs the check in all primary schools, New South Wales will be trialling the check this year, and Tasmania was due to trial the check this year, however has postponed this due to COVID-19.

 

The Government has contracted Education Services Australia Limited (ESA) to deliver the first and second elements of the National Phonics Check. Expenditure for the first and second elements is supported by table item 25 in Part 3 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997.

 

ESA a not-for-profit ministerial company owned by Australian and state and territory ministers as company members. It was established in 2010 under the Corporations Act 2001. The Board is made up of independent experts, as well as representatives from the Australian Government, Australian Education Senior Officials Committee (AESOC) and Universities Australia. ESA developed and maintains the online platform for delivering NAPLAN online and other 'Hubs' such as the Digital Technologies Hub and the Student Wellbeing Hub.

 

The Program will be delivered to up to 100 disadvantaged schools identified as ranking lowest in the Index of Community Socio-Educational Advantage (ICSEA) published by the Australian Curriculum and Reporting Authority on the MySchool website. Around 200 schools from the lowest ICSEA will be invited to participate in the Program. From these, a selection of 100 schools will be made by senior officials within the department to ensure a mix of government and non-government schools as well as remote, regional and metropolitan schools. The sectors will need to be in support of the Program as some jurisdictions have opposed to the Phonics Check as they have their own early years assessment (Western Australia and Queensland). ESA will not be involved in the selection of schools.

 

Services to be delivered as part of the Program include:

*         providing intensive support to school teachers and principals of participating schools on implementing the online Phonics Check and using the Phonics Hub;

*         developing and delivering professional learning modules for the Program, to be delivered both face-to-face and online for participating schools, and housed on the Phonics Hub; and

*         providing curriculum officers or phonics coaches to conduct regional professional learning workshops with teachers and school leaders. These will be customised to the needs of participating schools with webinars and online mentoring complementing face-to-face events.

 

The department has engaged ESA to deliver the first and second elements of the National Phonics Check through a limited tender. Similarly, the department will procure ESA's services to deliver the Program through a limited tender due to ESA's expertise in this field. This will enable existing work to be leveraged providing coherence and efficiency in delivery, and will also link to the work ESA is delivering on behalf of the department under the National School Reform Agreement. It is the intention of the department that ESA will provide all program elements with the exception of an external evaluation.

 

The National School Reform Agreement is an agreement between the Australian Government and all states and territories that sets out the long-term national goals for school education in Australia. To achieve these goals, the National Agreement sets out eight important reforms to be implemented nationally.

 

Procurement decisions will be subject to the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Procurement Rules (CPRs).

 

Payments will be made to ESA in accordance with the CPRs, the department's Accountable Authority Instructions and delegations on the expenditure of relevant money, in accordance with the PGPA Act.

 

Information about the Program, including information relating to decisions about the Program, will be available on the departmental website, with the relevant documents published on AusTender in line with the CPRs. A delegate of the Secretary of the department will be responsible for final decisions about the expenditure.

 

Funding decisions made in connection with the Program will not be subject to independent review, due to the non-competitive, targeted nature of the funding being provided to ESA. This process will be inappropriate for merits review as the resources being allocated are finite, and an allocation that has already been made to another party would be affected by overturning the original decision. Re-making a procurement decision after entry into a contract with a successful proponent is legally complex, impractical and will result in delays in implementation. Given ESA's experience in delivering educational and pedagogical outcomes, it is not reasonably foreseeable nor envisaged that any other organisation would receive funding in relation to this initiative.

 

Funding decisions made by the department in relation to the disadvantaged schools will also 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 school would affect an allocation that has already been made to another school. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.16 of the document What decisions should be subject to merit review?).

 

The department consulted with ESA, the Expert Advisory Panel, jurisdictions that have expressed an interest in the Phonics Check (NSW, SA, Tasmania and Queensland Catholic sector) and the Australian Curriculum, Assessment and Reporting Authority to discuss the implementation of the National Phonics Check. ESA, the Expert Advisory Panel and the consulted jurisdictions indicated strong support for the National Phonics Check, including the Program element.

 

The department will undertake regular consultations with a Phonics Advisory Group (to be established) with representation from key external stakeholders for advice on the implementation of the Phonics Health Check. The department will also undertake further consultations with ESA on the implementation of all aspects of the National Phonics Check, including the Program element.

 

Funding of $10.8 million for the National Phonics Check was included in the 2019-20 Mid-Year Economic and Fiscal Outlook under the measure 'Election Commitment - National Phonics Check' for a period of three years commencing in 2019-20. This includes funding of $2.8 million for the Program for a period of two years commencing in 2020-21. Details are set out in the Mid-Year Economic and Fiscal Outlook 2019-20, Appendix A: Policy decisions taken since the 2019 PEFO at page 206.

 

Funding for the Program will come from Program 1.5: Early Learning and Schools Support, which is part of Outcome 1. Details are set out in the Portfolio Additional Estimates Statements 2019-20, Education, Skills and Employment Portfolio at pages 10, 19, 24 and 39.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the external affairs power (section 51(xxix)) of the Constitution.

 

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 implementing Australia's obligations under treaties to which it is a party.

 

Australia has obligations under the following international conventions:

*         the Convention on the Rights of the Child [1991] ATS 4 (CRC), particularly Articles 4, 28(1)(b) and 29(1)(a); and

*         the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR), particularly Articles 2 and 13(2)(a).

 

Australia has obligations under the CRC to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC (Article 4). These rights include 'the right of the child to education' (Article 28). Article 28(1) relevantly provides that States Parties recognise the right of the child to education and shall, in particular:

 

(b)  Make educational and vocational information and guidance available and accessible to all children; ...

 

The Program will help make available and accessible educational information and guidance to all children through the assessment of literacy levels using the Phonics Check and access to literacy resources available on the Phonics Hub. Article 29(1)(a) of the CRC relevantly provides that 'States Parties agree that the education of the child shall be directed to ... the development of the child's personality, talents and mental and physical abilities to their fullest potential'.

 

The provision of a national, consistent online Phonics Check will allow students to reach their mental abilities to their fullest potential. Evidence suggests that effective literacy instruction in the early years of schooling is critical to students' academic performance in later years. Currently, at the national level, the first evidence of student progress in literacy is through the National Assessment Program - Literacy and Numeracy (NAPLAN) in Year 3. Earlier testing will provide crucial early years interventions to those students who need additional help. The UK and South Australia have been undertaking a similar phonics test for seven and three years respectively and have found significant improvements in the Year 1 cohort.

 

Australia also has obligations under the ICESCR to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means (Article 2).

 

Relevantly, the rights under the ICESCR include access to education (Article 13). Article 13(2) provides that States Parties recognise:

 

(a)    Primary education shall be compulsory and available free to all;

 

The Expert Advisory Panel found that while many states and territories were undertaking early years assessment, there was little consistency. Providing equal access to all children nationally to a free check allows for a consistent approach to early literacy. The UK and South Australia have been undertaking the test for seven and three years respectively and have found significant improvements in the year 1 cohort.

 

 

 

 

 

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. 3) 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. 3) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities that will be administered by the Department of Education, Skills and Employment.

 

This instrument adds:

*         table item 40 to Part 3 of Schedule 1AB for a grant to Anti-Defamation Commission Incorporation to expand the delivery of the Click Against Hate program; 

*         table item 41 to Part 3 of Schedule 1AB for a grant to DemoDAIRY Foundation Limited to support the Powell Legacy Fund initiative; and

*         table item 415 to Part 4 of Schedule 1AB for the Phonics Targeted Assistance Program for Disadvantaged Schools.

Table item 40 - Grant to Anti-Defamation Commission Incorporated - Click Against Hate program

 

Table item 40 establishes legislative authority for the Government to provide a grant to Anti-Defamation Commission Incorporated (ADC) to expand the delivery of the Click Against Hate (CAH) program to approximately 500 participating primary and secondary schools across Australia by the end of 2023.

 

ADC, which was established in 1979, is a not-for-profit organisation and a registered charity that supports the provision of education programs to Victorian school students. CAH is an educational program developed by ADC which teaches primary and secondary school students to deal with a wide range of issues associated with use of the internet including: identity theft; invasion of privacy; cyber bullying; incitement; defamation; online dangers; YouTube and Facebook reporting; anti-Semitism; Islamophobia; racism; homophobia; freedom of speech; vilification; obscenity; contempt of court; website reliability; and primary and secondary sources. CAH encourages online safety and assists students to develop an understanding of the importance of standing up to hate and intolerance experienced online through discussions, videos, cartoons, memes and informative slides. The program equips students with strategies and skills to combat hate experienced online by assisting them to take action when it happens to them, or when they see it happening to others. Qualified facilitators will deliver CAH in schools nationally.

 

Human rights implications

 

Table item 40 engages the following human rights:

*         the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Articles 4, 28 and 29 of the Convention on the Rights of the Child (CRC);

*         the right to freedom of thought, conscience and religion or belief - Articles 2 and 18 of the International Covenant on Civil and Political Rights (ICCPR); and

*         the right to freedom of opinion and expression - Article 19 of the ICCPR.

 

Right to education

 

Table item 40 engages the right to education contained in Article 29 of the CRC, read with Article 4, and in Article 13 of the ICESCR, read with Article 2.

 

Article 4 of the CRC provides that States Parties 'shall undertake all appropriate legislative, administrative and other measures' for the implementation of the rights recognised in the CRC. These rights include the 'right of the child to education' (Article 28(1)).

 

Article 29(1) of the CRC requires States Parties to direct education towards:

*         the development of the child's personality, talent and mental and physical abilities to their fullest potential (Article 29(1)(a));

*         the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations (Article 29(1)(b); and

*         the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes and friendship among all peoples (Article 29(1)(c)).

 

Table item 40 promotes the right to education by promoting respect for human rights and fundamental freedoms and preparing a child for responsible life in a free society, through equipping them with skills to combat hate and teaching them respect for a range of human rights.

 

Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means. This includes Article 13(1), which relevantly provides that States Parties:

 

recognize the right of everyone to education. They 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. They further agree that 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.

 

Table item 40 promotes the right to education by educating individuals to respect human rights and fundamental freedoms, and teach them skills to deal with incidences of discrimination and intolerance online. Table item 40 supports the right to education by educating participants of the impact of discrimination and intolerance on other people, and teaching them the beneficial effect of an inclusive and respectful environment.

 

Right to freedom of thought, conscience and religion or belief

 

Table item 40 engages the right to freedom of thought, conscience and religion or belief contained in Article 18 of the ICCPR, read with Article 2.

 

Article 2 of the ICCPR requires States Parties to take measures to give effect to the rights recognised in the ICCPR.

 

Article 18 of the ICCPR provides that:

 

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private to manifest his religion or belief in worship, observance, practice and teaching.

 

Table item 40 promotes the right to freedom of thought, conscience and religion or belief by promoting these rights to school students and teaching them to value diversity, including through tolerance of different thoughts, religions and beliefs.

 

Right to freedom of opinion and expression

 

Table item 40 engages the right to freedom of opinion and expression contained in Article 19 of the ICCPR, read with Article 2.

 

Article 2 of the ICCPR requires States Parties to take measures to give effect to the rights recognised in the ICCPR.

 

Article 19 of the ICCPR provides that:

 

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; ... .

 

Table item 40 promotes the right to opinion and expression by teaching students to value diversity, including diversity of opinion. The CAH program will teach students how to navigate the balance between free thought and 'hate speech' as well as increasing students' awareness of the rights contained in Articles 18 and 19 of the ICCPR.

 

Conclusion

 

Table item 40 is compatible with human rights because it promotes the right to education under the ICESCR and the CRC, the right to freedom of thought, conscience and religion or belief, and the right to freedom of opinion and expression under the ICCPR.

 

Table item 41 - Grant to DemoDAIRY Foundation Limited - Powell Legacy Fund

 

Table item 41 establishes legislative authority for the Government to provide a one-off grant to DemoDAIRY Foundation Limited (the Foundation) to support school students from the Corangamite Shire or with an affiliation with the Port Campbell or Timboon communities with scholarships from the Powell Legacy Fund. The scholarships will enable eligible students to undertake courses of study offered by a recognised and qualified education provider that result in a recognised accreditation or qualification (such as undergraduate, postgraduate or TAFE studies), or work experience or work integrated learning.

 

The Foundation supports the existing dairy industry, training organisations and individuals in South Western Victoria by building capacity and leadership in dairy farm business management and promoting innovative learning approaches and new technologies. The Powell Legacy Fund is a new initiative of the Foundation that will honour the work of the late Ross and Andy Powell who were involved in volunteering organisations related to education and agriculture in the Corangamite Shire. The Powell Legacy Fund will provide opportunities for students in a district where they may not otherwise have the opportunity to further their education due to financial hardship. This will contribute to the Government's objective to ensure all Australian students have access to high quality education.

 

Human rights implications

 

Table item 41 engages the following human rights:

*         the right to work - Article 6 of the ICESCR; and

*         the right to education - Articles 2 and 13 of the ICESCR.

 

Right to work

 

Table item 41 engages the right to work in Article 6 of the ICESCR.

 

Article 6(1) of the ICESCR recognises 'the right of everyone to the opportunity to gain his living by work' and that the States Parties 'will take appropriate steps to safeguard this right'. Article 6(2) provides that the steps to be taken by a State Party to the ICESCR 'to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual'.

 

Table item 41 supports the right to work by providing financial scholarships to enable students from regional communities to undertake technical and vocational study and training, and to develop skills and obtain qualifications to advance their chosen career.

 

Right to education

 

Table item 41 engages the right to education in Article 13 of the ICESCR, read with Article 2. Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means. Article 13(2) of the ICESCR requires the States Parties to take steps to achieve the full realisation of that right, including making 'higher education ... equally accessible to all, on the basis of capacity, by every appropriate means ... '.

 

Table item 41 supports the right to education by providing financial assistance to students in regional communities to access further education, including technical and vocational education.

 

Conclusion

 

Table item 41 is compatible with human rights because it promotes the right to work under the ICESCR, and the right to education under the ICESCR.

 

Table item 415 - Phonics Targeted Assistance Program for Disadvantaged Schools

 

Table item 415 establishes legislative authority for government spending on the Phonics Targeted Assistance Program for Disadvantaged Schools (the Program).

 

The Program is one of the three elements of the Government's $10.8 million election commitment to introduce a free voluntary phonics health check for Year 1 students (the National Phonics Check) announced on 10 May 2019. The commitment is part of the Government's Our Plan for Education package.

 

The three elements of the National Phonics Check are:

*         an online Phonics Check, which will be based on the UK Phonics Screening Check, and digitised and adapted for the Australian context;

*         an online Phonics Hub, which will provide professional learning materials for teachers and resources for families, to complement the Phonics Check; and

*         the Program, which will provide curriculum officers or phonics coaches to support up to 100 disadvantaged schools in teaching phonics and literacy, including the development of tailored professional learning resources.

 

The Government has contracted Education Services Australia Limited to deliver the first and second elements of the National Phonics Check. Expenditure for the first and second elements is supported by table item 25 in Part 3 of Schedule 1AB to the FF(SP) Regulations.

 

Services to be delivered as part of the Program include:

*         providing intensive support to school teachers and principals of participating schools on implementing the online Phonics Check and using the Phonics Hub;

*         developing and delivering professional learning modules for the Program, to be delivered both face-to-face and online for participating schools, and housed on the Phonics Hub; and

*         providing curriculum officers or phonics coaches to conduct regional professional learning workshops with teachers and school leaders. These will be customised to the needs of participating schools with webinars and online mentoring complementing face-to-face events.

 

Human rights implications

 

Table item 415 engages the following human right:

*         the right to education - Articles 2 and 13 of the ICESCR and Articles 4, 28 and 29 of the CRC.

Right to education

 

Table item 415 engages the right to education in Articles 28 and 29 of the CRC, and Article 13 of the ICESCR.

 

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC. These rights include 'the right of the child to education' (Article 28).

 

Article 29(1)(a) of the CRC provides that 'States Parties agree that the education of the child shall be directed to ... the development of the child's personality, talents and mental and physical abilities to their fullest potential'.

 

Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means. Article 13(2)(a) of the ICESCR relates to the right of everyone to primary education that is compulsory and free.

 

Table item 415 supports the right to education by providing appropriate phonics resources and phonics coaches in primary schools. These resources and coaches will help ensure that students' learning needs are met and that students are taught skills in phonics and literacy.

 

Conclusion

 

Table item 415 is compatible with human rights because it promotes the right to education under the ICESCR and the CRC.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance