Emergency Response Fund (Consequential Amendments) Bill 2019 [2019] AUPJCHR 75 (17 September 2019)

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Response required

1.2 The committee seeks a response from the relevant minister and legislation proponents with respect to the following bills.

Emergency Response Fund (Consequential Amendments) Bill 2019^[1]

Purpose	The bill seeks to make a number of consequential amendments to several Acts to enable the operation of the Emergency Response Fund The bill also seeks to repeal the Nation-building Funds Act 2008 and the Education Investment Fund
Portfolio	Finance
Introduced	House of Representatives, 11 September 2019
Right	Right to education
Status	Seeking additional information

Repeal of the Education Investment Fund

1.3 The Emergency Response Fund (Consequential Amendments) Bill 2019 (the bill) seeks to make a number of consequential amendments to other legislation to enable the operation of the Emergency Response Fund. The Emergency Response Fund is sought to be established by the Emergency Response Fund Bill 2019, and it would provide for a revenue stream to be used for emergency response and recovery from natural disasters that have a significant or catastrophic impact.

1.4 Schedule 2, Part 1 of the bill seeks to repeal the Nation-building Funds Act 2008 and the Education Investment Fund. The Emergency Response Fund will be established with an initial balance (money and investments) equal to the balance of the Education Investment Fund immediately before the establishment of the Emergency Response Fund. According to the explanatory memorandum, the last commitment from the Education Investment Fund was announced in July 2013 and all commitments have been paid.

Right to education

1.5 The investment mandates of the Education Investment Fund included payments in relation to transitional Higher Education Endowment Fund payments and the creation or development of: higher education infrastructure; research infrastructure; vocational education and training infrastructure; and eligible education infrastructure.^[2] It is unclear from the explanatory materials whether the repeal of the Education Investment Fund and its investment mandates might result in reduced availability of funds for higher education.

1.6 Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) protects the right to education. It specifically requires, with a view to achieving the full realisation of the right to education, that '[h]igher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.' Australia has obligations to progressively introduce free higher education by every appropriate means and has a corresponding duty to refrain from taking retrogressive measures, or backwards steps, in relation to the realisation of the right to education. Retrogressive measures, a type of limitation, may be permissible under international human rights law provided that they address a legitimate objective, are rationally connected to that objective and are a proportionate way to achieve that objective.

1.7 The statement of compatibility states that the measures in the bill are administrative or machinery in nature, and do not directly advance or limit a relevant human right or freedom.^[3] As such, the statement of compatibility does not clarify whether repealing the Education Investment Fund and transferring its balance into the proposed Emergency Response Fund would result in a reduced availability of funds for higher education and, as such, may engage or limit the right to education.

1.8 The committee seeks the minister's advice as to:

• whether the repeal of the Education Investment Fund and the transfer of its balance into the proposed Emergency Response Fund may reduce the availability of funding for higher education; and

• if so, whether this is compatible with the right to education.^[4]

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[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Emergency Response Fund (Consequential Amendments) Bill 2019, Report 5 of 2019; [2019] AUPJCHR 75.

[2] See Nation-Building Funds Act 2008.

[3] Statement of compatibility, p. 5.

[4] The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.