Australian Education Amendment (Direct Measure of Income) Bill 2020 [2020] AUSStaCSBSD 49 (2 April 2020)

• Australian Education Amendment (Direct Measure of Income) Bill 2020
• Significant matters in delegated legislation1

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Chapter 1

Comment bills

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Australian Education Amendment (Direct Measure of Income) Bill 2020

Purpose	This bill seeks to amend the Australian Education Act 2013 to introduce a new direct measure of income methodology for calculating a school community’s capacity to contribute financially to a non-government school. The bill also enables adjustments to be made to the transition pathways of non-government schools to a nationally consistent Commonwealth share of the Schooling Resource Standard
Portfolio	Education
Introduced	House of Representatives on 26 February 2020

Significant matters in delegated legislation^[1]

1.2 Item 25 of Schedule 1 to the bill seeks to amend the Australian Education Act 2013 to insert proposed section 35C, which provides that the regulations may prescribe a percentage, or a method to work out a percentage, for a non-government school for a transition year for the school that is the Commonwealth share for the school for the transition year.

1.3 The committee’s view is that significant matters, such as the calculation of the Commonwealth share of funding for transitioning non-government schools, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum states:

It has been decided to move the provisions relating to the determination of Commonwealth shares for non-government schools during their transition years from Part 3 of the Act to the Regulation. Section 35C thus provides that the Regulation may prescribe a percentage, or a method to work out a percentage, for a non-government school for a transition year for the school, that is the Commonwealth share for the school for the transition year. The rationale for this approach is to provide flexibility to adjust transitional arrangements in response to future changes in the circumstances in the non-government sector, and mitigate potential unintended consequences arising from the refinement of the [direct measure of income] methodology. It is also considered appropriate given the regulations made for this purpose will be time-limited in nature with starting Commonwealth shares to be reset in 2020, 2021 and again in 2022, and all non-government schools expected to transition to the consistent Commonwealth share by 2029.^[2]

1.4 The committee notes the explanation that the calculation measures are designed to be transitionary and notes that the regulations will be subject to parliamentary disallowance. However, the committee also notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. As the detail of delegated legislation is generally not publicly available when Parliament is considering a bill, this considerably limits the ability of the Parliament to have appropriate oversight over whether any method for the calculation of the Commonwealth share of funding for transitioning non-government schools is appropriate.

1.5 The committee draws the matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation for information.

1.6 In light of the detailed information provided in the explanatory memorandum and the fact that the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

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[1] Schedule 1, item 25, proposed section 35C. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[2] Explanatory memorandum, p. 20.