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Australian Education Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

THE HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

AUSTRALIAN EDUCATION BILL 2012

 

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for School Education, Early Childhood and Youth, the Hon Peter Garrett AM MP)

 

 

 

 



 

AUSTRALIAN EDUCATION BILL 2012

 

 

Amendments to be moved on behalf of the Government

 

 

GENERAL OUTLINE

 

 

 

The purpose of the amendments is to enshrine in law a national approach to funding school education that ensures that schools are funded according to the needs of their students. The amendments also link schools funding to key school reform directions that will provide the basis for achieving the goals that:

 

·          Australian schooling provides a high quality and equitable education for all students;

·          Australia be placed in the top five countries internationally in reading, mathematics and science by 2025; and

·          Australia be considered to be a high quality and high equity schooling system by international standards by 2025.

 

All recurrent Commonwealth funding for participating schools will be delivered through fair and transparent needs-based arrangements, providing new investment to support reforms that will help to improve each student's achievements at school. For participating schools, additional investment will support the evidence-based reforms in the National Plan for School Improvement that are focused on quality teaching, quality learning, transparency and accountability, meeting student need and empowering school leadership.

 

For the first time participating government and non-government schools will be funded on a consistent basis, with a new Schooling Resource Standard (SRS) for all recurrent funding to participating schools. The States and Territories and non-government approved authorities with more than one participating school will implement needs-based funding models approved as consistent with the SRS, but will be able to tailor their models to best address local needs. Funding for disadvantage will be fully publicly funded for both government and non-government schools and students. Families choosing non-government schools will still contribute to the base cost of funding their school, consistent with current arrangements.

 

The new funding arrangements fundamentally change the way resources are provided by better linking funding to each student's needs. These reforms deliver transparent funding allocations for all schools and sectors.

 

The amendments provide financial assistance to States and Territories for government and non-government schools from 2014 and beyond. Commonwealth financial assistance is provided to States in accordance with section 96 of the Constitution, and to Territories in reliance on section 122 of the Constitution. It replaces provisions in the Federal Financial Relations Act 2009 which authorised funding to States and Territories for government schools and supersedes the Schools Assistance Act 2008, which authorised recurrent funding for non-government schools for 2008 to 2013.

 

The Preamble sets out the Commonwealth’s commitment to an Australian education system with high expectations for every student, regardless of background, the type of school they go to, or the barriers they face to educational attainment. It also shows the Commonwealth’s commitment to a system that delivers the support to make these high expectations achievable. The Objects acknowledge matters referred to in the Preamble and set out the objective of schooling and the national goals and targets for schooling.

 

Recipients of funding

 

The amendments provide for funding for both participating schools and non-participating schools.  A participating school is a non-government school, or a government school of a participating State or Territory. A non-participating school is a government school of a non-participating State or Territory. The Minister will determine the participating States and Territories, which will be those States and Territories that are party to the National Education Reform Agreement and have a signed bilateral agreement with the Commonwealth.

 

Under the amendments, recurrent funding for schools is provided to the approved authority for the school. For government schools the approved authority is the State or Territory and for a non-government school, the approved authority is a body corporate that is approved by the Minister for the school.  An individual school may be its own approved authority or an approved authority may govern or administer a group of schools.  An approved authority is approved in relation to the schools, locations and levels of education specified in its approval.

 

Funding under the amendments is also able to be provided to block grant authorities, capital grants authorities, and non-government representative bodies. Block grant authorities are bodies corporate approved by the Minister to receive grants of financial assistance for capital expenditure by non-government schools.  Funding for capital expenditure by schools generally can also be provided to capital grants authorities, which include States and Territories, block grants authorities, and the approved authorities for the schools themselves.

 

Conditions on grants to States and Territories

 

The amendments impose several conditions on the grants of financial assistance to States and Territories. These include the requirement for States and Territories to implement agreed national policy initiatives relating to school education in accordance with regulations. Other conditions are the requirement to give financial assistance provided to the State or Territory to the relevant approved authority, capital grants authority, block grant authority, or non-government representative body, and to comply with regulations relating to recovery of overpayments from approved authorities for non-government schools. National policy initiatives are outlined including addressing Aboriginal and Torres Strait Islander educational disadvantage and supporting work of national education institutions such as the Australian Curriculum, Assessment and Reporting Authority, the Australian Institute for Teaching and School Leadership, and Education Services Australia.

 

Schooling Resource Standard

 

The amendments outline how financial assistance for participating schools is calculated. Financial assistance for participating schools is payable each year, based on a formula that produces the Commonwealth share of a total amount of public funding. This financial assistance is supported by the standing appropriation in the amendments (clause 126).

 

All participating schools are entitled to a base amount of funding for every student. Students and schools who need extra support will also receive additional loadings.  The base amount and most of the loadings are worked out by reference to an amount per student called the SRS funding amount. There is a different SRS funding amount for primary and secondary students. For 2014 the SRS funding amount is $9,271 for a primary student and $12,193 for a secondary student.  A combined school will receive an SRS funding amount for each student that is the average of the primary and secondary student amounts, weighted by the respective proportions of primary and secondary students at the school. The SRS amount is indexed annually by 3.6%.

 

The base amount for a school for a year reflects the number of students at the school for the year, the SRS funding amount for the year for a student at the school and the capacity of the school’s community (parents and other carers of students at the school) to contribute financially to the school. The capacity to contribute component does not apply to government schools, special and special assistance schools, sole provider schools and schools with a majority of Aboriginal and Torres Strait Islander students.

 

Capacity to contribute

 

The amendments set out the details of calculating the ‘capacity to contribute percentage’ for non-government schools - that is, the proportion of the SRS that will be publicly funded based on its socio-economic status (SES) score. The amendments set out a range of SES scores with corresponding capacity to contribute percentages for primary and secondary schools. The Minister must determine a school’s SES score, and can do so either by legislative instrument to determine a score for a group of schools or by administrative decision to determine a score for an individual school.

 

Distance education students at non-government schools will attract a set lower proportion of the base per student amount that recognises the different levels of support appropriate to those students. Loadings will still be 100% publicly funded for distance education students.

 

Loadings

 

The amendments provide for six loadings for schools’ recurrent funding, and set out how these loadings are calculated. Schools can receive additional funding through loadings for:

 

·          students with disability;

·          Aboriginal or Torres Strait Islander students - for every Indigenous student;

·          students with a low socioeconomic status - for every student in the bottom half of socio-economic backgrounds;

·          students who have low English proficiency;

·          schools that are not in major cities - ranging from 10% for schools in regional areas to 80% to very remote schools; and

·          schools that are not large schools (size loading).

 

The loadings (except the size loading) are a percentage of the relevant SRS funding amount multiplied by the number of students at a school that qualify for that loading. The loading for students with disability will be introduced once nationally consistent data on these students is available and a robust loading developed in 2015. Until then, an interim loading will be used as prescribed in regulations. For the size loading, small schools, and very small schools in very remote areas with a certain number of students, are entitled to the maximum size loading while large schools are not entitled to any size loading.  All other schools are entitled to a proportion of the maximum size loading. The amendments also provide for some details for calculating these loadings to be specified in regulations.

Transitioning to the new funding arrangements

 

Transition arrangements will apply to move schools and approved authorities towards their SRS entitlement over time.

 

The transitional funding arrangements rely on comparing the current funding outcomes for school authorities with the funding outcomes under the new SRS funding arrangements, and over a period of time adjusting the funding amounts from the current amounts until they reach the new SRS funding amounts. The comparison is done on an amount-per-student basis, to ensure changes in enrolments over the transition period are taken into account.

 

Approved authorities whose old per student amount for 2014 (i.e. the amount under current funding arrangements) is less than their new per student amount for 2014 (i.e. the amount under the SRS funding formulas) will receive additional funding over time to move them towards the SRS amount by 2019.

 

Approved authorities whose old per student amount for 2013 (plus 3%) is more than their new per student amount for 2014 will continue to receive the old per student amount, plus indexation of 3% per annum until their new per student amount catches up with their publicly funded SRS amount. This guarantees that even schools that are currently funded at more than the SRS funding amounts will continue to receive their current funding (on a per-student basis), indexed by 3% per annum.

 

A transitional provision applies for special schools and special assistance schools for 2014 to ensure that the approved authority for those schools is paid at least the old per student amount for 2014 for their students.

 

Transitional funding is supported by the standing appropriation in the amendments.

 

Capital funding/special circumstances/non-government representative bodies

 

The current capital grants program for non-government schools is maintained under the amendments. The amendments provide for a capped amount to be paid to block grant authorities every year. That amount is indexed in keeping with current arrangements. This funding is supported by the standing appropriation in the amendments.

 

The amendments also provide for capital funding to be paid to capital grants authorities. This enables capital grants programs to be rolled out in future, as determined by government. The amendments do not provide an appropriation for these capital grants, which must be set out in the Budget and supported by annual appropriations.

 

The Minister may also determine that financial assistance is payable for a school in special circumstances. This maintains the current arrangements for short-term emergency assistance. Special circumstances funding is appropriated under annual appropriations.

 

The amendments also empower the Minister to determine financial assistance to be paid to a non-government representative body that represents the interests of non-government schools. The amount available would be provided by annual appropriation



 

Non-participating schools

 

The amendments set out funding for non-participating schools which are government schools in States and Territories that have not signed the National Education Reform Agreement. Funding is worked out by reference to the amount that the State or Territory received during 2013 under the Federal Financial Relations Act 2009 . Consistent with arrangements under that Act, the non-participating jurisdictions’ amount is indexed each year by the Minister, and split amongst the non-participating jurisdictions, having regard to the Intergovernmental Agreement on Federal Financial Relations.

 

Approval of approved authorities

 

The amendments provide the Minister with the power to approve (or not approve) approved authorities to receive Commonwealth funding. This approval is based on the authority meeting basic and ongoing requirements for approval, as set out in the amendments (and regulations).

 

Basic requirements for funding

 

All approved authorities are required to meet basic, or threshold requirements in order to receive funding.  These requirements apply to all approved authorities of government and non-government schools as well as non-participating schools. The amendments include a provision that recognises State and Territory governments as satisfying the basic requirements automatically.

 

The basic requirements to be met include:

 

·          not conducting schools for profit;

·          being financially viable;

·          being a body corporate (non-government) or body politic (government);

·          being a fit and proper person.

 

The body corporate requirement applies to all non-government approved authorities and reasonable transition arrangements will be in place for any approved authority that needs to become incorporated. The fit and proper person requirement ensures that approved authorities (and specific personnel within the approved authority) are of good character and have, or have access to, requisite skills to support delivery of high-quality education outcomes and proper management of the school.

 

Ongoing policy requirements

 

The amendments set out ongoing policy requirements, to be met by all approved authorities, in order to receive funding. Ongoing policy requirements apply to all government and non-government schools, and apply to participating and non-participating schools.

 

Ongoing policy requirements for an approved authority are to:

 

·          enhance teacher and principal performance and professional development at the schools;

·          implement the national curriculum (Australian Curriculum or equivalent);

·          participate in the national assessment program;

·          have a school improvement framework, and ensure that each school develops, implements, publishes and reviews a school improvement plan;

·          comply with relevant disability discrimination laws of the Commonwealth, a State or Territory; and

·          provide information as required by the regulations.

 

Information requirements that will be included in regulations include arrangements related to the school census, national data collection, to conducting research on school and school education, approved authority implementation plans or school improvement plans, the administration and operation of a school, student reports to parents and publicly available information about a school.

 

Ongoing funding requirements

 

The amendments set out ongoing funding requirements for approved authorities:

 

·          that the approved authority deals, in accordance with the regulations, with financial assistance that is payable under the Act (for example, that recurrent funding is spent on school education); and

·          that the authority complies with monitoring and compliance requirements prescribed by the regulations relating to the authority’s compliance with the Act (including conditions of its approval) and its implementation plan.

 

Further, approved authorities for more than one participating school must:

 

·          distribute all financial assistance (from the Act or a State or Territory) in accordance with a needs-based funding arrangement; and

·          comply with Part 7 of the Act (requirements relating to implementation plans).

 

Implementation Plans

 

Approved authorities for more than one participating school must have an implementation plan, which meets the requirements set out in Part 7 of the amendments. Implementation plans explain how the approved authority intends to implement the education reforms and must set out activities, programs and initiatives, including implementation milestones and timelines and mechanisms for measuring progress.  Approved authorities must review plans and evaluate progress, and the implementation plan (and reports of reviews) must be published.

 

The amendments also provide the Minister with a residual power to give approved authorities directions in relation to their implementation plans, for example, where an approved authority is not undertaking the activities it has committed to. In deciding whether to give such a direction the Minister must have regard to any relevant education agreement that the approved authority is a party to such as the National Education Reform Agreement or the National Education Agreement.

 

Review of decisions

 

The amendments provide for enhanced review mechanisms compared to previous schools funding legislation. The amendments provide for statutory mechanisms for the review of specified administrative decisions including a system of internal review by the department, as well as external, independent review by the Commonwealth Administrative Appeals Tribunal.

 

Failure to comply or overpayment

 

The amendments give the Minister the power to take action if a State or Territory, approved authority, block grant authority, capital grants authority or non-government representative body fails to comply with the specified provisions of the amendments, or does not repay an amount that it owes to the Commonwealth. In those circumstances, the Minister may require a State or Territory to pay an amount, may reduce an amount that would otherwise be payable to the State or Territory under this Act or may delay a payment. (These provisions are similar to provisions for current schools funding legislation.)

 

Regulations

 

The amendments allow for the making of regulations similar to previous schools funding legislation.  Due to the more comprehensive nature of the amendments and the fact that it consolidates requirements previously found in the Administrative Guidelines for the Schools Assistance Act 2008 and funding agreements under that Act, regulations under the Bill will be more extensive than the Schools Assistance Regulations 2009 .  The regulations provide a mechanism for amending elements of the calculation of funding and prescribe detail regarding the approval conditions, consolidating requirements previously found elsewhere such as the Guidelines and funding agreements.

 

Because the Bill is part of a nation-wide school education and funding reform agenda, to be implemented in conjunction with States and Territories and supported by intergovernmental agreements, the Standing Council on School Education and Early Childhood will have a role in reviewing regulations made for the Act. Consequently, before the Governor-General makes regulations for the Act, the Minister is obliged to consult the Standing Council on them.

 

 

 

FINANCIAL IMPACT STATEMENT

 

These amendments provide for an appropriation of an estimated $104.3 billion over 2014 to 2019.

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

The Statement of Compatibility with Human Rights appears at the end of this Explanatory Memorandum.

 

 

 

 

 

 

 

 



 

AUSTRALIAN EDUCATION BILL 2012

 

Amendments to be moved on behalf of the Government

 

 

NOTES ON AMENDMENTS

 

 

 

Amendments 1 to 6

 

These amendments amend the Preamble.

 

The Preamble sets out the Commonwealth’s commitment to an Australian education system with high expectations for every student, regardless of background, the type of school they go to, or the barriers they face to educational attainment, and a system that delivers the support to make these high expectations achievable. Amendments include specific references to the Melbourne Declaration on Educational Goals for Young Australians and more specific references to non-government organisations, parents and carers, not-for-profit and community organisations, other partners and schools, to better reflect the important role of these groups.

 

Amendment 7

 

Amendment 7 is a technical amendment to add a heading at the start of Part 1.

 

Amendment 8

 

Amendment 8 substitutes clause 3 (Objects of the Act).

 

The Objects have been amended to include the objective for schooling, consistent with the National Education Reform Agreement, and to include the national education goals and targets and existing Council of Australian Government targets.

 

The Objects of the Act also include the implementation of the National Plan for School Improvement. The National Plan for School Improvement will address the five key school education reform directions of: quality teaching; quality learning; empowered school leadership; transparency and accountability; and meeting student need. The reform directions are explained in subclauses 3(3) to (8).

 

Amendment 9

 

Amendment 9 inserts a new clause 4 (Guide to this Act).

 

Amendment 10

 

Amendment 10 omits clause 4 (Definitions) and substitutes a new Division 2 of Part 1 (clauses 6 to 19).

 

Amendment 11

 

Amendment 11 omits Part 2 (Improving the performance of schools and school students) and substitutes new Part 2 (Grants of financial assistance to States and Territories).

Amendment 12

 

Amendment 12 omits Part 3 (Miscellaneous) and substitutes new Part 3 (Recurrent funding for participating schools)

 

Amendments 13 to 18

 

Amendments 13 to 18 add the following new Parts:

 

Part 4 (Recurrent funding for non-participating schools through a national specific purpose payment)

Part 5 (Capital funding, special circumstances funding and funding for non-government representative bodies)

Part 6 (Approving authorities and bodies)

Part 7 (Implementation plans)

Part 8 (Actions Minister may take for failure to comply with this Act and to require amounts to be repaid )

Part 9 (Miscellaneous)

 

New Division 2 of Part 1 and Parts 2 to 9 are described below.

 

 

 

 



 

Part 1 - Preliminary

 

Division 2 - Interpretation 

 

Clause 6 - Definitions

 

This clause is an interpretation provision which contains definitions of the terms and expressions used in the Act. 

           

Clause 7 - Definition of census day

 

This clause provides that a school’s census day for a year is the day determined by the Minister, in writing, to be the school’s census day for the year.

 

A determination by the Minister of a school’s census day for a year must not be made less than 5 weeks before the day unless the Minister determines that special circumstances justify determining an earlier day.  An example of special circumstances would include where a school has closed prior to a census being undertaken.  The Minister may determine that school’s census day to be a day before the school closed.

 

The clause provides that a determination by the Minister of a school’s census day is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

The Minister must notify the approved authority for a school of the school’s census day for a year, in such a way that makes it reasonably likely for the approved authority to become aware of the census day. This can include by publication on a website that the approved authority is likely to access.  The notice must be given at least 5 weeks before the census day unless special circumstances exist (for example, the school has closed and the census day is retrospective), in which case the notice must be given as soon as practicable.

 

A student receives primary or secondary education at a school on the school’s census day if the student is enrolled at the school on that day and either the student attends the school on a daily basis in the 4-week period that ends on that day (excluding school holidays), or the Minister determines that the student is a person who receives primary education or secondary education at the school.

 

Clause 8 Definition of majority Aboriginal and Torres Strait Islander school

 

This clause provides that a school is a majority Aboriginal and Torres Strait Islander school for a year if the school has an ARIA index value of more than 10.53 or is in a very remote area, and at least 50% of the students at the school on the school’s census day for the previous year are Aboriginal and Torres Strait Islander students.

 

If the school does not have an ARIA index value of more than 10.53 and is not in very remote area, the school is also a is a majority Aboriginal and Torres Strait Islander school if at least 80% of the students at the school on the school’s census day for the previous year are Aboriginal and Torres Strait Islander students.

 

 

Clause 9 - Definition of overpayment   

 

This clause specifies what constitutes an overpayment to a State or Territory in relation to participating schools, approved authorities during transition period, non-participating schools, capital funding, special circumstances funding and non-government representative bodies.  Generally, where the Commonwealth makes a payment to a State or Territory as a result of a determination by the Minister that funding is payable, and the total of the amount of the payment, and any previous payments made, as a result of the determination exceeds to the relevant entitlement or limit, an overpayment arises.

 

Participating schools

 

If the payments of recurrent funding for a year for a participating school exceed the school’s total entitlement for the year, the overpayment consists of the amount paid in excess of the total entitlement.

 

Approved authorities during transition period

 

If the payments of transitional recurrent funding for an approved authority for a year exceed the approved authority’s total entitlement for the year, the overpayment consists of the amount paid in excess of the total entitlement.

 

Non-participating schools

 

If the payments of recurrent funding for non-participating schools for a year exceed the total entitlement for those non-participating schools for the year, the overpayment consists of the amount paid in excess of the total entitlement.

 

Capital funding

 

If the payments of capital funding for a capital grants authority or block grant authority for a year exceed the amount of capital funding determined by the Minister under clause 67, the overpayment consists of the amount paid in excess of the amount determined by the Minister under clause 67.

 

If the payments of capital funding for a block grant authority for a year exceed the amount of capital funding worked out for the year under clause 68, the overpayment consists of the amount paid in excess of the amount worked out for the year under clause 68.

 

Special circumstances funding

 

If the payments of special circumstances funding for a school for a year exceed the amount of special circumstances funding determined by the Minister under clause 69, the overpayment consists of the amount paid in excess of the amount determined under clause 69. 

 

Funding for non-government representative body

 

If the payments for a non-government representative body for a school for a year exceed the amount of funding for the body for the year determined by the Minister under clause 70, the overpayment consists of the amount paid in excess of the amount determined under clause 70. 

 

Clause 10 - Definition of receives         

 

This clause provides for a definition of the concept of a student receiving primary education or secondary education at a school.

 

A person receives primary or secondary education only if:

 

·          the person attends the school on a daily basis and the school location and the level of education provided at that location are specified in the approval of the approved authority for the school; or

·          the Minister is satisfied that special circumstances apply and the Minister determines that the person receives primary or secondary education at the school.

 

The requirement that a person attends on a daily basis is not intended to require attendance every single day.  Students may be absent from school for legitimate reasons such as illness, significant family emergencies, to attend a special religious ceremony and in certain circumstances family holidays. If outside these justifiable absences the person is in regular attendance at a school, the person is considered to attend on a daily basis.   

 

A determination in relation to special circumstances may be made on the Minister’s initiative or on application by the approved authority for the school. Any application by the approved authority that relates to a year must be made within 14 days of the school’s census day for the year or, if allowed by the Minister, within a longer period specified by the Minister.

 

A student will be taken to be receiving primary or secondary distance education at a school in a State or Territory only if the student resides in the State or Territory, the State or Territory provides funding for the school (other than financial assistance provided to the State or Territory for the school under the Act) for primary or secondary education for students enrolled at the school who receive distance education from the school, and the student is not approved as a home-education student in the State or Territory.

 

Clause 11 - Definition of recoverable payment

 

This clause provides a definition of when a payment is a recoverable payment as a payment other than an overpayment, that the Commonwealth purports to make, and but for the deeming provision under clause 112, does not have the power to make.  

 

Clause 12 - Definition of total entitlement

 

This clause provides a definition of total entitlement for a year for a participating school, an approved authority and for non-participating schools.

 

The total entitlement for a year for a participating school is the amount payable under Division 2 of Part 3 - The funding formula for participating schools.  That Division specifies the funding formula for participating schools, including a base amount and loadings.

 

The total entitlement for a year for an approved authority is the amount payable under Division 5 of Part 3 - Transitional recurrent funding for participating schools.  That Division specifies the transitional recurrent funding for participating schools.

 

The total entitlement for a year for non-participating schools is the amount payable under Part 4 - Recurrent funding for non-participating schools through a national specific purpose payment.

 

Clause 13 - Definitions of kinds of schools based on location

 

This clause provides for definitions of kinds of schools based on location. Schools are defined as a major city school , an inner regional school , an outer regional school , a remote school or a very remote school , based on the applicable ARIA index value set out in column 2 of the table.

 

The regulations may replace the ARIA index values in the table, as well as formulas relevant for the purposes of calculating the location loading.  

 

Clause 14 - Minister to determine participating States and Territories

 

This clause provides that the Minister may make a determination in writing that a State or Territory is a participating State or Territory if the Minister is satisfied that the State or Territory is a participating State or Territory. The note under this provision provides that a participating State of Territory is a party to the National Education Reform Agreement and has a bilateral agreement with the Commonwealth.

 

Such a determination comes into force on 1 January of the year specified in the determination (because the Act will provide for annual funding calculation and payment). By coming into force on 1 January of the year specified in the determination, the determination will cover schools from the start of the calendar year irrespective of when the determination was made. This ensures schools are not disadvantaged for that school year.

 

The determination is a legislative instrument that is not subject to disallowance, as the determination will give effect to intergovernmental agreements between the Commonwealth and participating States and Territories (see, for example, subsection 44(1) of the Legislative Instruments Act 2003 which provides that disallowance does not apply where enabling legislation for an instrument facilitates the operation of an intergovernmental scheme).

 

Clause 15 - Levels of education

 

This clause provides for the regulations to prescribe what is primary education, or secondary education, in a State or Territory.  Before the making any such regulations, the Minister must have regard to the arrangements made for providing education at government schools in the State or Territory.

 

The clause also provides that if, the Minister is satisfied that special circumstances exist, the Minister may determine, in writing, that a different level of education from that prescribed in the regulations constitutes primary or secondary education for a specified special school, special assistance school, or student at the school. 

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 16 - Working out the number of students at a school for a year

 

This clause provides that where the Act refers to the number of students at a school for a year it means the number of students who receive primary or secondary education at the school on the school’s census day for the year. 

 

The regulations will include provisions that explain a student that is attending on a daily basis within four weeks prior to the census day (excluding school holidays) is considered to have attended on the census day. This allows for normal movements of students who otherwise attend regularly but were not present exactly on that day.

 

Clause 17 - Part-time students

 

This clause provides that a part time student is to be counted as a fraction of a student representing the fraction of the full-time study load undertaken by the student at the school.  For example a student undertaking ½ a full-time study load should be counted as ½ a student.  This fraction is based on study load not necessarily the percentage of time attended.

 

Clause 18 - Minister to make determinations in relation to locations of schools

 

This clause provides that if a school has more than one location, the Minister may, in writing, determine the location of the school for the purposes of working out the school’s ARIA index value (which is relevant to determining its location and size loadings, for example).  If not all locations of the school are in the same State or Territory, the Minister may determine, in writing, in which State or Territory the school is located (which is relevant to determining which State or Territory to make grants of financial assistance to in respect of the school, amongst other things).

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 19 - Non-government schools providing only distance education

 

The Act will not provide funding for non-government schools that only provide distance education. Such bodies are not considered to be schools for the purposes of the Act. This is consistent with current Commonwealth schools’ funding arrangements; distance education funding under the Schools Assistance Act 2008 is only provided to schools which are otherwise eligible for recurrent funding for students other than distance education students (e.g. see subsections 57(1) and 58(1) of that Act).

 

However the Minister may determine that a specified non-government school is to be considered a school for the purposes of the Act and therefore potentially be eligible for funding.         

 



 

Part 2 — Grants of financial assistance to States and Territories

 

Clause 20 - Guide to this Part

 

This clause provides an outline of Part 2 of the Bill, which deals with grants of financial assistance to States and Territories and conditions that apply to the provision of financial assistance.

 

Clause 21 - Financial assistance for schools

 

This clause provides that financial assistance is payable to a State or Territory under provisions for:

 

·          recurrent funding for a participating school located in the State or Territory;

·          transitional recurrent funding for participating schools for an approved authority, if determined by the Minister;

·          recurrent funding for non-participating schools located in the State or Territory;

·          capital funding for a capital grants authority or block grant authority if determined by the Minister;

·          special circumstances funding for a school if determined by the Minister;

·          funding for a non-government representative body for a non-government school if determined by the Minister.

 

A note draws reference to clause 18 with respect to schools that are located in more than one State or Territory.

 

Clause 22 - Conditions of financial assistance—implementing national policy initiatives relating to school education

 

This clause provides that financial assistance is payable to States and Territories on the condition that they implement national policy initiatives for school education in accordance with the regulations.  Before any such regulations are made, the Minister must have regard to any decisions of the Ministerial Council relating to national policy initiatives for school education and any relevant arrangement of a State or Territory.

 

A note explains that the national policy initiatives are those agreed policy initiatives that States and Territories have responsibility for implementing for the school education system generally (in their role as regulators and policy makers), including:

 

·          working cooperatively with other governments and non-government education authorities to provide a high quality and highly equitable education system; and

·          supporting the work of national education institutions including the Australian Curriculum, Assessment and Reporting Authority, the Australian Institute for Teaching and School Leadership, and Education Services Australia Ltd; and

·          improving the quality of teachers (including through nationally consistent registration processes); and

·          addressing Aboriginal and Torres Strait Islander educational disadvantage.

 

The elements included in this clause refer to areas of national reform activity agreed through the Standing Council for School Education and Early Childhood and reflect the reforms outlined in the National Education Reform Agreement.

Clause 23 - Conditions of financial assistance—conditions relating to payments to States and Territories for non-government schools

 

This clause provides that payments of the following kinds of financial assistance to a State or Territory are subject to the conditions set out in the clause:



·          recurrent funding for a non-government school (Division 2 of Part 3);

·          transitional recurrent funding for an approved authority for a non-government school (Division 5 of Part 3);

·          capital funding for a capital grants authority for a non-government school or a block grant authority (Division 2 of Part 5);

·          special circumstances funding for a non-government school (Division 3 of Part 5);

·          funding for a non-government representative body for a non-government school (Division 4 of Part 5).

 

The conditions are as follows:

 

·          to pass on the payment to the relevant authority or body;

·          to make such payments as soon as practicable, or within a further period allowed by the Minister.

 

Clause 24 - Condition of financial assistance—recovering amounts

 

This clause provides that a condition of the payment of financial assistance to a State or Territory is that the State or Territory comply with any regulations regarding recovering amounts as a result of a determination made under paragraph 110(1)(a) or (b) from the State or Territory or an approved authority, capital grants authority, block grant authority or non-government representative body.

 

Paragraph 110(1)(a) allows the Minster to make determinations requiring States and Territories, to which Division 2 of Part 8 applies, to pay the Commonwealth a specific sum.   

 

Clause 25 - Minister to determine timing and amounts of recurrent funding

 

This clause concerns written determinations that the Minister may make in relation to the amounts of payments of recurrent funding and the timing of such payments.

 

The purpose of this provision is twofold. First, it allows Commonwealth recurrent funding for schools, which is calculated on an annual basis, to be paid in instalments, including instalments in advance and arrears. Second, it ensures that the total annual entitlement to Commonwealth recurrent schools’ funding is paid to the relevant authorities, thus providing legal assurance of that funding.

 

Subclause (1) provides that the Minister may make written determinations of amounts of financial assistance payable to a State or Territory for a year (and the timing of those payments) for:

 

·          participating schools in that State or Territory under Division 2 of Part 3 (which relates to the recurrent funding for participating schools); and

·          approved authorities in that State or Territory under Division 5 of Part 3 (which relates to transitional recurrent funding for participating schools); and

·          non-participating schools in that State or Territory under Part 4 (which relates to recurrent funding for non-participating schools).

 

Subclause (2) provides that, an amount may be determined, and a payment made under subclause (1), taking into account information from a previous year (including information from a census day of a previous year), and before the beginning of the year.

 

A determination for a school for a year can also be made after the end of the year.

 

Clause 26 - Entitlement to recurrent funding

 

This clause provides that the total amount of payments to a State or Territory for a participating school for a year under Division 2 of Part 3 must equal the amount that is determined under subclause (4) as the school’s total entitlement for the year. ‘Total entitlement’ is defined in clause 12.

 

The total amount of payments to a State or Territory for an approved authority for a year under Division 5 of Part 3 must equal the amount that is determined under subclause (4) as the authority’s total entitlement for the year.

 

The total amount of payments to a State or Territory for a non-participating school for a year under Part 4 must equal the amount that is determined under subclause (4) as the non-participating school’s total entitlement for the year.

 

For the purposes of determining the total amount of payments, the Minister may determine an amount that the Minister is satisfied is the relevant total entitlement.



A determination by the Minister under subclause (4) is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 27 - Pro-rating of recurrent funding

 

This clause provides that determinations are to be made under clause 25, in accordance with the regulations, for a participating school or an approved authority for a participating school for a year if:

 

·          no student receives primary or secondary education at the school, or one of its locations, during a part of the year (except for school holidays); or

·          the approval of the school’s approved authority is varied during the year to change the level of education for a location of the school; or

·          the school either becomes entitled to or ceases to be entitled to financial assistance under Part 3.

 

Clause 28 - Minister to determine timing and amounts of capital funding

 

This clause provides that the Minister may make written determinations of amounts of financial assistance payable to a State or Territory for a year (and the timing of those payments) for:

 

·          a capital grants authority under subclause 67(1) (which relates to capital funding for capital grants authorities); and

·          a block grant authority under subclause 67(2) (which relates to capital funding for block grant authorities).

 

A note explains that amounts payable may be reduced under clause 110.

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 29 - Minister to determine timing and amounts of special circumstances funding

 

This clause provides that the Minister may make written determinations of amounts of financial assistance payable to a State or Territory for a year (and the timing of those payments) for a school located in that State or Territory under Division 3 of Part 5 (which relates to special circumstances funding).

 

A note explains that amounts payable may be reduced under clause 110.

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 30 - Minister to determine timing and amounts of funding for non-government representative body

 

This clause provides that the Minister may make written determinations of amounts of financial assistance payable to a State or Territory for a year (and the timing of those payments) for a non-government representative body under Division 4 of Part 5 (which relates to funding for non-government representative bodies).

 

A note explains that amounts payable may be reduced under clause 110.

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .



 

Part 3 — Recurrent funding for participating schools

 

Division 1 - Guide to this Part

 

Clause 31 - Guide to this Part

 

This clause provides an outline of Part 3 of the Bill which deals with recurrent funding for participating schools.

 

Division 2 - The funding formula for participating schools

 

Clause 32 - The amount payable for a participating school

 

This clause sets out the funding formula for the amount of financial assistance that is payable under this Division to a State or Territory for a year for a participating school.

 

Notes to the clause state that during the transition period, the amount of financial assistance that is payable to a State or Territory may be worked out under Division 5 and that the amount may be rounded up or down.

 

Clause 33 - Base amount for schools

 

This clause sets out the formula to work out a primary school or secondary school’s base amount for a year.  A school’s base amount is used in the formula in clause 32.

 

The clause sets out how the base amount is worked out for a year for a combined school and for a non-government school (that is not covered by subclause 54(1)) at which students receive distance education.

 

Clause 34 - SRS funding amounts       

 

This clause sets out the SRS funding amount of $9,271 for a primary student and $12,193 for a secondary student in 2014. These amounts are indexed annually by 103.6%.

 

The clause also states that the SRS funding amount for a primary or secondary student can be prescribed in the regulations.

 

The clause also sets out the formula for working out the SRS funding amount for a year for a student at a combined school.

 

The SRS funding amounts are used in the formula in clause 33.

 

Clause 35 - School’s total loading         

 

This clause states that a school’s total loading for a year is the sum of amounts calculated for the year for the school’s student with disability loading, Aboriginal or Torres Strait Islander loading, low socioeconomic status student loading, low English proficiency loading, location loading and size loading.

 

The school’s total loading for a year is used in the formula in clause 32.

 

 

Division 3 - Working out loadings

 

This Division sets out how to calculate the various loadings that make up a school’s total loading .

 

Subdivision A - Loadings (except location and size loadings)

 

Clause 36 - Student with disability loading

 

This clause sets out the formula to work out a school’s student with disability loading for a year. For 2014 there will be an interim loading for students with disability. The formula to calculate a school’s student with disability loading uses the disability loading percentage which is the percentage prescribed for the school by the regulations. The formula also uses the number of students with disability at the school for the year which is the number of such students receiving primary or secondary education at the school on the school’s census day.

 

Clause 37 - Aboriginal and Torres Strait Islander loading

 

This clause sets out the formula to work out a school’s Aboriginal and Torres Strait Islander loading for a year. The formula uses the school’s ATSI percentage for a year, and the clause sets out the formula to work out the school’s ATSI percentage for a year. The formula also uses the number of Aboriginal and Torres Strait Islander students at the school for the year which is the number of such students receiving primary or secondary education at the school on the school’s census day for the year.

 

Clause 38 - Low socioeconomic status student loading

 

This clause sets out the formula to work out a school’s low socio-economic status student loading for a year. This formula uses the school’s quartile 1 amount and quartile 2 amount , and the clause provides the formulae for calculating those amounts.

 

Part of the formula for calculating the school’s quartile 1 amount and quartile 2 amount is the number of students who are in quartile 1 and quartile 2, respectively, and those numbers are prescribed by regulations. Information on numbers of students in quartiles 1 and 2 is currently sourced from the Australian Curriculum Assessment and Reporting Authority (ACARA), but may form part of the National Education Data Program in the future, hence the need for flexibility in determining the source of the information.

 

Clause 39 - Low English proficiency loading

 

This clause sets out the formula to work out a school’s low English proficiency loading for a year.  This formula uses a proxy measure of the number of Disadvantaged Language Background Other Than English (DLBOTE) students to infer the number of students at a school for a year who have low English proficiency and this number is prescribed by regulations.  Information on numbers of DLBOTE students who have low English proficiency is currently sourced from ACARA, but may form part of the National Education Data Program in the future, hence the need for flexibility in determining the source of the information.

 



 

Subdivision B - Location loading

 

Clause 40 - Location loading

 

This clause sets out the formula to work out a school’s location loading for a year. This formula uses a school’s location percentage which is set out in the table at subclause 2.

 

Clause 41 - Location percentage for certain schools         

 

This clause sets out the formulae to work out the location percentage for inner regional schools, outer regional schools, remote schools and very remote schools.

 

Subdivision C - Size loading

           

Clause 42 - Size loading

 

This clause provides the size loadings for a school for a year, for a school that is a small school (which is the maximum size loading, as worked out under clause 44), a very small school (which is the amount worked out under clause 46), a medium-sized school (which is the amount worked out under clause 51) or a large school (which is zero).

 

Clause 43 - Definitions—kinds of schools based on size  

 

This clause provides definitions of kinds of schools based on size. Schools are defined as a very small school, a small school, a medium-sized school and a large school based on the number of students at the school for a year in relation to maximum lower , maximum upper or zero lower limits set out in column 2 of the table.

 

Definitions of maximum lower limit , maximum upper limit and zero lower limit are provided for a primary school, a secondary school and a combined school. The regulations may also prescribe another number for each of these thresholds.

 

Clause 44 - Definition—maximum size loading

 

This clause sets out definitions of maximum size loading for a primary school or a secondary school for 2014.  The clause also provides that a school’s maximum size loading for other years is determined by an indexation formula, or may be prescribed by the regulations.

 

The clause sets out the indexation percentage of 103.6% and provides that the regulations may prescribe another percentage as the indexation percentage.

 

The clause also sets out the formula for a combined school’s maximum size loading for a year.

 

Clause 45 - Definitions—primary percentage and secondary percentage

 

This clause provides that a combined school’s primary percentage and secondary percentage for a year are the percentage of students at the school receiving primary and secondary education, respectively, on the census day for the year.

 



 

Clause 46 - Very small schools—size loading

 

This clause sets out the size loading for a school that is a very small school for a year in a table.

 

Clause 47 - Very small schools—schools covered by item 3 of the table in section 46

 

This clause provides the formula for the size loading for a year for a school that is covered by item 3 of the table in clause 46. This formula uses increased starting amount , which is worked out using the formula at subclause (2).

 

Clause 48 - Very small schools—major city schools

 

This clause provides the formula for the size loading for a year for a school that is covered by item 4 of the table in clause 46 - major city schools.

 

Clause 49 - Very small schools—starting amount   

 

This clause sets out a primary or secondary school’s starting amount for a year for 2014. The clause also provides that a school’s starting amount for other years is determined by an indexation formula, or may be prescribed by the regulations.

 

The clause sets out the indexation percentage of 103.6% and provides that the regulations may prescribe another percentage as the indexation percentage.

 

The clause also sets out the formula for working out a combined school’s starting amount for a year.

 

Clause 50 - Very small schools—ARIA student number    

 

This clause sets out the formula for working out a school’s ARIA student number .

 

Clause 51 - Medium sized schools—size loading     

 

This clause sets out the formula for working out the size loading for a medium sized school for a year.

 

Division 4 - Miscellaneous

 

Subdivision A - Capacity to contribute percentage

 

This Subdivision sets out the details of calculating the capacity to contribute percentage - that is, the school’s share of the SRS based on its SES score.

           

Clause 52 Determining SES scores

 

This clause provides that the Minister must determine in writing each participating school’s SES score. It is provided that the Minister may determine, by legislative instrument, the SES score for one or more schools.

 

Where the Minister does not determine a school’s SES score by legislative instrument, the Minister must determine the SES score by administrative decision. This determination must be in accordance with the regulations unless the Minister is satisfied doing so would result in an SES score that does not accurately reflect the socioeconomic circumstances of the persons responsible for students at the school.

 

It is also provided that an administrative determination of a school’s SES score that applies to a year must not be made after the year has ended unless:

 

·          the determination (the new determination) replaces a previous determination that is in force for the school and the SES score in the new determination is no higher than the SES score in the previous determination; or

·          the approved authority for the school agrees in writing to the determination being made retrospectively; or

·          the Minister is satisfied that special circumstances justify the determination; or

·          the determination is made by, or as a result of a decision by, an internal reviewer, the Administrative Appeals Tribunal, or court after reviewing a previous determination that applied to the year.

 

It is further provided that this clause does not apply in relation to a government school; a special school; a special assistance school; a school that is a majority Aboriginal and Torres Strait Islander school for a year; a sole provider school. As these schools have a capacity to contribute of zero (subclause 54(1)) there is no need for the Minister to determine their SES scores.

 

Clause 53 - Determinations may be on application or on Minister’s own initiative

 

This clause provides that a determination of a school’s SES score made by legislative instrument or administrative decision may be made on the Minister’s own initiative. It also provides that an administrative determination of a school’s SES score may be made on application of the approved authority for the school or a person who is applying to be the approved authority for the school.

 

It is also provided that an application made by a person must specify, the school to which the application relates; the year to which the application relates; and if a determination under clause 52 is already is force for the school, the reasons why the person is applying for a new determination.

 

Furthermore it is provided that a person may not apply for a determination by administrative decision of a school’s SES score if the school’s score has been determined by legislative instrument under subclause 52(2).

 

Clause 54 - Capacity to contribute percentage

 

This clause provides that the capacity to contribute percentage is 0% for a government school; a special school; a special assistance school; a school that is majority Aboriginal and Torres Strait Islander for a year and a sole provider school.

 

Further the clause provides a table which establishes the capacity to contribute percentage for primary and secondary schools (other than those mentioned above) based on a school’s SES score.

 



 

Subdivision B - Miscellaneous

 

Clause 55 - Locations of a school        

 

This clause provides that for the purposes of this Part, and any other provisions to the extent they relate to this Part, that a reference to a school includes a location of the school only if the location, and the level of education provided by the school at that location, are specified in the approval of the approved authority for the school.

 

Clause 56 - Rounding amounts

 

This clause provides for rounding to the nearest dollar, including rounding up an amount of 50 cents of an amount of financial assistance that is payable to a State or Territory for a year for a participating school worked out under clause 32, and of an amount of a school’s loading for a year referred to in paragraphs 35(a) to (f).

 

Division 5—Transitional recurrent funding for participating schools

 

This Division sets out transitional funding arrangements for participating schools. Not all schools will attract funding in the amounts determined under Division 2 (the fully-loaded SRS amount) from 2014. Rather, they will receive funding increases that will bring them into line with their fully-loaded SRS amounts over time.

 

The Division deals with three transitional funding arrangements:

 

·          funding for approved authorities who, on a per-student average, are currently receiving less public funding than they would if their funding was calculated under the fully-loaded SRS (so-called “below SRS” authorities) (clause 59);

·          funding for approved authorities who, on a per-student average, are currently receiving more public funding than they would if their funding was calculated under the fully-loaded SRS (so-called “above SRS” authorities) (clause 61); and

·          a funding guarantee for 2014 for above SRS authorities operating only special schools and special assistance schools (clause 62).

 

Once an approved authority’s transitional funding amount equals the fully-loaded SRS amount for all its schools, it is regarded as being “at SRS”, and ceases to be funded under the transitional arrangements, and its funding is calculated on a school-by-school basis under Division 2 (clause 63).

 

Clause 57 - Application of this Division

 

This clause states that this Division applies in relation to an approved authority for one or more participating schools and that in situations set out in clauses 59, 61 and 62, the amount of financial assistance that is payable under this Division to a State or Territory for a year is payable for an approved authority instead of a school.

 

Clause 58 - New and old per student amounts

 

This clause requires the Minister to determine in writing for each approved authority that is an approved authority on 1 January 2014, an old per student amount for 2013 and 2014 and, if clause 59 applies in relation to the approved authority, an old Commonwealth per student amount for 2014.

 

The per student amounts determined by the Minister for an approved authority must not be inconsistent with the authority’s relevant arrangement (for example, its bilateral agreement or memorandum of understanding with the Commonwealth).

 

It is also provides the formula for working out the new per student amount for a year for an approved authority on 1 January 2014. This formula uses the approved authority’s total public funding amount for the year, which is the total amount worked out for the year under clause 32 for all the approved authority’s schools, disregarding the Commonwealth’s share.

 

Clause 59 - Old per student amount for 2014 less than new per student amount for 2014

 

This clause applies if an approved authority’s old per student amount for 2014 is less than the authority’s new per student amount for 2014.

 

The clause provides that, subject to clause 60, the Minister may in writing determine the amount of financial assistance that is payable under this Division to a State or Territory for the approved authority for a year in the transition period.  The amount determined by the Minister must not be inconsistent with the relevant arrangement of the approved authority (for example, its bilateral agreement or memorandum of understanding with the Commonwealth).

 

For each year that begins after the end of the approved authority’s transition period, the amount payable under this Part for each of the approved authority’s schools is worked out under clause 32.

 

The approved authority’s transition period begins on:

 

·          for an approved authority for government schools located in a State or Territory - the day the State or Territory becomes a participating State or Territory; and

·          for an approved authority for non-government schools - 1 January 2014

 

and ends on the day determined by the Minister (which must not be inconsistent with the approved authority’s relevant arrangement).

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 60 - Limits on amount that may be determined for the purposes of section 59

 

This clause sets out the limits on the amount that may be determined by the Minister of financial assistance that is payable under this Division to a State or Territory for an approved authority for a year in the transition period. Essentially, the amount of financial assistance that is payable to an approved authority under clause 59 must be:

 

·          no less that the amount the approved authority would have receive from the Commonwealth in 2014 under pre-existing arrangements (i.e. the old Commonwealth per student amount) indexed by 4.7% per year; and

·          no more than the amount the approved authority would receive from the Commonwealth under the SRS funding formulas.

 

This clause therefore gives effect to the guarantee that schools will receive an increase in Commonwealth funding of at least 4.7% per annum, until they reach the SRS amount.

 

Clause 61 - Old per student amount for 2013, increased by 3%, more than new per student amount for 2014

 

This clause applies if an approved authority’s old per student amount for 2013, increased by 3%, is more than the authority’s new per student amount for 2014 and neither clause 59 nor 62 applies in relation to the approved authority.

 

The clause provides the formula to work out the amount payable under this Division to a State or Territory for the approved authority for a year.  This formula uses the approved authority’s old per student amount for the year.  For a year after 2014, this amount is indexed.

 

This method of calculation ceases to apply once the approved authority’s new per student amount for the year is equal to or more than the approved authority’s old per student amount for that year.  The amount of financial assistance that is then payable under this Part is worked out under clause 32.

 

Clause 62 - Transitional recurrent funding for special schools and special assistance schools for 2014

 

This clause applies if on 1 January 2014, an approved authority is approved only in relation to one or more special schools or special assistance schools and clause 59 does not apply in relation to the approved authority.

 

The clause provides the formula to work out the amount payable under this Division to a State or Territory for the approved authority for 2014, despite clause 32.  

 

This method of calculation ceases to apply for 2015 and each later year. The amount of financial assistance that is then payable under this Part is worked out under clause 32.

 

Clause 63 - Funding for all other participating schools

 

This clause provides that the amount payable under this Part to a State or Territory is worked out under clause 32, for 2014 and each later year, for each participating school whose approved authority is not covered by clause 59, 61 or 62.



 

Part 4 — Recurrent funding for non-participating schools through a national specific purpose payment

 

Clause 64 - Guide to this Part

 

This clause provides an outline of Part 4 of the Bill which deals with recurrent funding for non-participating schools through a national specific purpose payment.

 

Clause 65 - National specific purpose payments for schools in non-participating States and Territories

 

This clause sets out the amount of financial assistance that is payable under this Part to a State or Territory for a year for non-participating schools.

 

The total amount payable to all non-participating States and Territories for a year for non-participating schools located in those States or Territories is:

 

·          for 2014 - their 2013 FFR amount, indexed in the manner determined by the Minister; and

·          for any other year - the total amount payable for the previous year under this Part, indexed in the manner determined by the Minister.

 

The clause sets out the formula for working out the 2013 FFR amount for non-participating States and Territories.

 

The Minister may, by legislative instrument, determine, for each year, in which there are at least 2 non-participating States and Territories, the manner in which the total amount of financial assistance that is payable to all non-participating States and Territories for a year for non-participating schools located in those States or Territories is to be divided between those non-participating States and Territories.

 

In making a determination under this clause, the Minister must have regard to any relevant arrangement of the non-participating States and Territories, for example, the Intergovernmental Agreement.

Part 5 — Capital funding, special circumstances funding and funding for non-government representative bodies

 

Division 1 - Guide to this Part

 

Clause 66 - Guide to this Part

 

This clause provides an outline of Part 5 of the Bill which deals with capital funding, special circumstances funding and funding for non-government representative bodies.

 

Division 2 - Capital funding

 

Clause 67 - Capital funding

 

This clause provides that the Minister may determine, in writing, an amount of financial assistance  that is payable to a State or Territory for a year for a capital grants authority or a block grant authority for a school, if the Minister is satisfied that financial assistance is required for capital expenditure for the school.

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 68 - Limit on total amount available for capital funding for block grant authorities

 

This clause provides that the total amount the Minister determines for capital funding for a block grant authority for a year must not exceed the amount set out in the clause.

 

For 2014 that amount is the base assistance amount worked out under subsection 84(2) of the Schools Assistance Act 2008 if it had applied in 2014.  For any other year it is either:

 

·          the base assistance amount as indexed under subclause (2); or

·          if the regulations prescribe another amount, that amount.

 

Subclause (2) sets out the indexation for the base assistance amount as being the base assistance amount for the previous year multiplied by the indexation percentage.

 

Subclause (3) sets out the indexation percentage as 100% or if the regulations prescribe another percentage, that percentage.

 

Subclause (4) provides that before regulations are made for the purposes of subsection (3), the Minister must consider changes in an index of building prices prescribed by the regulations and an index of wage costs prescribed by the regulations.

 

Subclause (5) sets out rounding provisions, which requires rounding to the nearest $1,000 (rounding $500 upwards).

 

Subclause (6) sets out that a failure to comply with the total capped amounts in subsection (1) does not affect the validity of a payment made as a result of a determination made under paragraph 28(1)(b) (which permits the Minister to determine timing and amounts of capital funding).

 

Division 3 - Special circumstances funding

 

Clause 69 - Special circumstances funding

 

This clause provides the Minister may determine, in writing, an amount of financial assistance payable to a State or Territory for a school for a year if the Minister is satisfied that special circumstances justify the determination.

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Division 4 - Funding for non-government representative bodies

 

Clause 70 - Funding for non-government representative bodies

 

This clause empowers the Minister to determine, in writing, an amount of financial assistance to a State or Territory for a year for a non-government representative body for a non-government school.

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

Part 6 — Approving authorities and bodies

 

Division 1 - Guide to this Part

 

Clause 71 - Guide to this Part

 

This clause provides an outline of Part 6 of the Bill which deals with approving authorities and bodies.

 

Division 2 - Approving approved authorities

           

Clause 72 - Application for person to be approved as an approved authority

 

This clause provides for a person to apply to the Minister to be approved as an approved authority for one or more schools.  Applications must specify each school for which the application is made, each location of each school and for each such location, the level of education provided at the location.

 

Clause 73 - Approval of person

 

This clause provides that the Minister may approve a person as an approved authority for one or more schools if the person has made an application and the Minister is satisfied that the requirements set out in clauses 75, 77 and 78 will be satisfied.  Approval may be subject to conditions and the approved authority must comply with such conditions. In imposing any such conditions, the Minister must have regard to any relevant arrangement of the approved authority.

 

An approval must specify the day on or after which the approval is in force.  That day may be earlier than the day the approval is given, but may be earlier than 1 January of year in which the application is made only if special circumstances apply.

 

The Minister must not approve a person for a school, if another approved authority is already approved for the school.

 

Clause 74 - Approval or refusal of approval on public interest grounds

 

This clause empowers the Minister to, in writing:

 

·          refuse to approve a person as an approved authority, if the Minister is satisfied that it would be contrary to the public interest;

·          approve a person as an approved authority, if the Minister is satisfied that it is in the public interest to approve the person.

 

These decisions are not reviewable on the merits, but a report must be laid before each House of Parliament if the Minister makes a decision under this clause (see clause 127). These decisions are not delegable, so must be made personally by the Minister (see subclause 129(2)).

 

Further, subclause (2) requires the Minister to publish a notice of any decision made under subclause (1) within 7 days giving a brief statement of reasons for the decision.

 

 

 Approvals under this clause may specify:

 

·          a period during which the approval is in force;

·          one or more requirements under clause 75, 77 or 78 with which the person is not required to comply.

 

The purpose of this clause is to provide the Minister with a residual power to decide, in the public interest, to provide or withhold Commonwealth recurrent funding for schools. In doing so, the Act would operate in a similar fashion to the Schools Assistance Act 2008 . Funding under that Act is discretionary, whereas under the Bill as proposed, recurrent funding is legally guaranteed. As there may be some circumstances where it is contrary to the public interest to provide Commonwealth funding, the Minister can refuse to do so.

 

Equally, the tightening of approval requirements under the Bill could lead to some bodies who would have been approved under the Schools Assistance Act 2008 not being approved under the new provisions, and hence the Minister will remain able to approve them - while also requiring those organisations to bring themselves into compliance with the approval requirements in a reasonable period of time.

 

The fact that these decisions must be made personally by the Minister, must be published, and included in the Minister’s annual report to Parliament ensure these decisions are made at the highest levels and are transparent and subject to scrutiny.

 

Clause 75 - Basic requirements for approval

 

This clause sets out the basic requirements for approval as an approved authority, including being a body corporate or a body politic, not conducting for profit any school in relation to which the application is made, being financially viable and being a fit and proper person.

 

The clause also sets out a number of matters that the Minister may have regard to in determining whether a person satisfies these requirements.

 

Another basic requirement is for each level and location specified in the approval, the person is permitted under a law to provide that level of education at that location.

 

Clause 76 - Approved authorities for government schools taken to satisfy basic requirements

 

This clause provides that approved authorities for government schools are taken to satisfy the basic requirements for approval in clause 75.

 

However the Minister may, in writing, determine that a particular authority for a government school does need to satisfy the basic requirements for approval.  This would enable the Commonwealth to examine whether a State or Territory education authority is meeting the basic requirements - for example, whether it is operating a school for profit while receiving Commonwealth funding for that school. Such a determination must be made personally by the Minister, and reported on in the Minister’s annual report to Parliament under clause 127.

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 77 - Ongoing policy requirements for approved authorities

 

This clause sets out the ongoing policy requirements for an approved authority for the schools for which the authority is approved. These requirements are:

 

·          having in place processes and procedures for enhancing principal and teacher performance and professional development in accordance with the regulations;

·          implementing the curriculum in accordance with the regulations;

·          ensuring the schools participate in the national assessment program in accordance with the regulations;

·          ensuring that the authority has a school improvement framework in accordance with the regulations and that each school develop, implement, publish and review a school improvement plan in accordance with the regulations;

·          compliance with relevant disability discrimination laws;

·          providing information in accordance with regulations.

 

These requirements reflect the reform areas which require consistent national effort by all education authorities.

 

The information requirements that may be included in regulations include information in relation to a school’s census, national data collection, research on schools/school education, relating to school improvement plans or an authority’s implementation plan, administration and operation of schools, student reports to parents and making publicly available information about a school.

 

Before any such regulations are made, the Minister must have regard to any relevant arrangement of approved authorities for government schools.

 

Clause 78 - Ongoing funding requirements for approved authorities

 

This clause sets out the ongoing funding requirements for an approved authority for a school. These requirements are:

 

·          dealing in accordance with the regulations, with any payable recurrent funding for participating and non-participating schools and capital and special circumstances funding;

·          complying with requirements prescribed by the regulations in relation to monitoring the authority’s compliance with the Act and any implementation plan.

 

If the approved authority is approved for more than one participating school, the ongoing funding requirements also include:

 

·          distributing all recurrent funding for participating schools, or received from a State or Territory, in accordance with a needs-based funding arrangement in accordance with the regulations; and

·          complying with the requirements regarding implementation plans under Part 7 of the Act.

 



 

Clause 79 - Limitation on approval

 

An approved authority is approved only for a school, a location of a school and a level of education at that location, that is specified in the approval.

 

Clause 80 - Variation or revocation of approval on application

 

This clause allows the approved authority to apply, in writing, for the authority’s approval to be varied or revoked.

 

The Minister may vary the authority’s approval for one or more schools only if the Minister is satisfied that the requirements referred to in paragraph 73(1)(b) are, and will continue to be, satisfied.

 

The Minister may revoke the authority’s approval.

 

Any variation or revocation must specify the day it takes effect.  That day may be earlier than the day the Minister varies or revokes the approval.

 

Clause 81 - Variation or revocation of approval on Minister’s own initiative

 

This clause provides for the variation or revocation of approval of an approved authority on the Minister’s own initiative.  The Minister may vary or revoke an approved authority’s approval for one or more schools if the Minister is satisfied that:

 

·          the approved authority does not comply, is not complying, or has not complied with, the basic, ongoing policy or ongoing funding requirements; or

·          the approved authority is not complying or has not complied with any other condition to which the approval is subject; or

·          varying or revoking the approval is in the public interest; or

·          for an approved authority for government schools - the State or Territory has not complied with certain specified conditions for financial assistance applicable to States and Territories.

 

In varying or revoking an approval, the Minister must have regard to any relevant arrangement of the approved authority. Where dispute mechanisms are provided under the relevant arrangements, these would be pursued prior to the Minister considering variation or revocation of approval.

 

These decisions are reviewable, except decisions made by the Minister on the basis of the public interest. This public interest power is non-delegable (see clause 129(2)(d)). If the Minister makes a decision on the basis of the public interest, a report must be laid before each House of the Parliament dealing with the decision.

 

If the Minister is satisfied that a school has ceased to provide primary or secondary education, the Minister may either:

 

·          if the authority is approved for only that school - revoke the authority’s approval

·          if the authority is approved for other schools as well - remove the school from the approval.

 

The Minister may vary an authority’s approval for one or more schools only if the Minister is satisfied that the requirements in paragraph 73(1)(b) are, and will continue to be, satisfied in relation to the varied approval. 

 

Any variation or revocation must specify the day it takes effect.  That day may be earlier than the day the Minister varies or revokes the approval.

 

Division 3 - Approving block grant authorities

 

Clause 82 - Application for person to be approved as a block grant authority

 

This clause provides that a person may apply to be an approved block grant authority.  The application must specify the schools for which the application is made.  The schools may be specified by referring to the approved authority for the school.

 

Clause 83 - Approval of person

 

This clause provides that the Minister may approve a person as a block grant authority for one of more schools if the person has made an application and the Minister is satisfied that the requirements set out in clauses 84 and 85 will be satisfied.  Approval may be subject to conditions and the approved authority must comply with such conditions.

 

An approval must specify the day on or after which the approval is in force.  That day may be earlier than the day the approval is given, but may be earlier than 1 January of year in which the application is made only if special circumstances apply.

 

The Minister must not approve a person as a block grant authority for a school, if another block grant authority is already approved for the school.

 

Clause 84 - Basic requirements for approval

 

This clause sets out the basic requirements for approval as a block grant authority, including being a body corporate, being a not-for-profit organisation, being financially viable and being a fit and proper person.

 

The clause also sets out a number of matters that the Minister may have regard to in determining whether a person satisfies these requirements.

 

Another basic requirement is for each school specified in the approval, the block grant authority has written permission of the approved authority for the school to receive capital funding that is payable under Division 2 of Part 5.

 

Clause 85 - Ongoing requirements for approval

 

This clause sets out the ongoing requirements for an approval of a block grant authority. These requirements are:

 

·          dealing, in accordance with the regulations, with financial assistance that is payable under Division 2 of Part 5;

·          complying with requirements prescribed by the regulations in relation to monitoring the authority’s compliance with the Act;

·          providing information in accordance with the regulations.

 

The information requirements that may be included in regulations include providing information relating to the administration and operation of a school and providing information to the public about a school.

 

The financial assistance requirements that may be included in regulations include specifying how financial assistance is to be allocated in relation to schools and requirements for review of decisions of the block grant authority on how to allocate financial assistance.

 

Clause 86 - Limitation on approval

 

A block grant authority is approved only for schools specified in the approval or, if the approval instead specifies an approved authority - the schools for which the approved authority is, from time to time, approved.

 

Clause 87 - Variation or revocation of approval on application

 

This clause allows a block grant authority to apply, in writing, for its approval to be varied or revoked.

 

The Minister may vary the approval only if the Minister is satisfied that the requirements referred to in paragraph 83(1)(b) are, and will continue to be, satisfied.

 

The Minister may revoke the authority’s approval.

 

Any variation or revocation must specify the day it takes effect.  That day may be earlier than the day the Minister varies or revokes the approval.

 

Clause 88 - Variation or revocation of approval on Minister’s own initiative

 

This clause provides for the variation or revocation of approval of a block grant authority on the Minister’s own initiative.  The Minister may vary or revoke a block grant authority’s approval for one or more schools if the Minister is satisfied that:

 

·          the authority does not comply, is not complying, or has not complied with, the basic or ongoing requirements; or

·          the approved authority is not complying or has not complied with any other condition to which the approval is subject.

 

Subclause (3) provides if the Minister is satisfied that a school has ceased to provide primary or secondary education, the Minister may either:

 

·          if the block grant authority is approved for only that school - revoke the authority’s approval;

·          if the block grant authority is approved for other schools as well - remove the school from the approval.

 

Subclause (4) provides that the Minister may vary a block grant authority’s approval for one or more schools only if the Minister is satisfied that the requirements in paragraph 83(1)(b) are, and will continue to be, satisfied in relation to the varied approval. 

 

Any variation or revocation must specify the day it takes effect.  That day may be earlier that the day the Minister varies or revokes the approval. 

Division 4 - Approving non-government representative bodies

 

Clause 89 - Minister may invite a person to apply to be a non-government representative body

 

This clause allows the Minister to, in writing, invite a person to apply to be an approved non-government representative body for a non-government school if the Minister is satisfied that the person represents the interests of the relevant approved authority and the person is likely to meet the basic requirements for approval.

 

The Minister may, in writing, withdraw the invitation at any time before the person makes an application.

 

Clause 90 - Application for person to be approved as a non-government representative body

 

A person who has been invited to apply to be an approved non-government representative body for a non-government school may apply to the Minister to be so approved. The application must specify the schools for which the application is made.  The schools may be specified by referring to the approved authority for the school.

 

Clause 91 - Approval of person

 

This clause provides that the Minister may approve a person as a non-government representative body for a non-government school if the person has made an application and the Minister is satisfied that the requirements set out in clauses 92 and 93 will be satisfied.  Approval may be subject to conditions and the body must comply with such conditions.

 

An approval must specify the day on or after which the approval is in force.  That day must be on or after the day the approval is given.

 

Clause 92 - Basic requirements for approval

 

This clause sets out the basic requirements for a non-government representative body for a non-government school, including being a body corporate, being a not-for-profit organisation, being financially viable and being a fit and proper person.

 

The regulations may prescribe matters that the Minister may or must have regard to in making a decision under this clause.

 

Clause 93 - Ongoing requirements for approval

 

This clause sets out the ongoing requirements for a non-government representative body for a non-government school. These requirements are:

 

·          the body represents the interests of the relevant approved authority;

·          dealing, in accordance with the regulations, with funding for non-government representative bodies;

·          complying with requirements prescribed by the regulations in relation to monitoring the authority’s compliance with the Act;

·          providing information in accordance with the regulations.

Clause 94 - Limitation on approval

 

A non-government representative body is approved only for schools specified in the approval or, if the approval instead specifies an approved authority - the schools for which the authority is, from time to time, approved.

 

Clause 95 - Variation or revocation of approval on application

 

This clause allows a non-government representative authority to apply, in writing, for its approval to be varied or revoked.

 

The Minister may vary the approval only if the Minister is satisfied that the requirements referred to in paragraph 91(1)(b) are, and will continue to be, satisfied.

 

The Minister may revoke the approval.

 

Any variation or revocation must specify the day it takes effect.  That day may be earlier than the day the Minister varies or revokes the approval.

 

Clause 96 - Variation or revocation of approval on Minister’s own initiative

 

This clause provides for the variation or revocation of approval of a non-government representative body for a non-government school on the Minister’s own initiative.  The Minister may vary or revoke a non-government representative body’s approval for one or more schools if the Minister is satisfied that:

 

·          the body does not comply, is not complying, or has not complied with, the basic or ongoing requirements; or

·          the approved body is not complying or has not complied with any other condition to which the approval is subject.

 

Subclause (3) provides that the Minister may vary a non-government representative body’s approval only if the Minister is satisfied that the requirements in paragraph 91(1)(b) are, and will continue to be, satisfied in relation to the varied approval. 

 

Any variation or revocation must specify the day it takes effect.  That day may be earlier that the day the Minister varies or revokes the approval. 



Part 7 — Implementation plans

 

Clause 97 - Guide to this Part

 

This clause provides an outline of Part 7 of the Bill which deals with implementation plans.

 

Clause 98 - Application of this Part to approved authorities for more than one participating school           

 

This clause states that Part 7 applies only in relation to approved authorities for more than one participating school.

 

Clause 99 - Approved authority must have an implementation plan

 

This clause requires all approved authorities with responsibility for more than one participating school to have an implementation plan.

 

The clause also sets out requirements in relation to the implementation plan, including that it must set out activities, programs and initiatives that will be undertaken by or on behalf of the approved authority to achieve the objects of the Act and the outcomes for school education.  

 

The implementation plan must relate to a period of at least 6 years.

 

For participating States and Territories, the requirements for an implementation plan will be satisfied by the finalisation of their bilateral agreement with the Commonwealth. For other approved authorities with more than one school, it may be met as part of an agreed Memorandum of Understanding. In addition to outlining the activities, programs and initiatives that will be undertaken, implementation plans will also outline implementation milestones and timelines, performance indicators to track progress, feedback and evaluation mechanisms, and any other requirement prescribed by the regulations. Approved authorities will also be required to review and publish their implementation plans on a regular basis, and will be expected to consult with parents and the school community in the development of their implementation plan.

 

Clause 100 - Approved authority must be able to implement implementation plan properly

 

This clause states that an approved authority must ensure it has in place suitable structures and practices relating to governance and management to properly implement its implementation plan.

 

Clause 101 - Period of implementation plan

 

This clause requires an approved authority to make a new implementation plan at least once every 6 years.

 

Clause 102 - Review of implementation plan

 

This clause requires an approved authority to review its implementation in accordance with the regulations.

 

The review must evaluate whether the implementation plan continues to comply with clause 99 and remains up to date. It further provides that if the implementation plan requires the outcomes of an activity, program or initiative to be measured, that the review consider the outcome of the activity, program or initiative and whether the intended outcome is being, or is likely to be, achieved.

 

The approved authority must update the implementation plan if, after conducting a review, the approved authority has concluded that the intended outcome of the activity, program or initiative is not being, or is not likely to be achieved.

 

Clause 103 - Keeping implementation plans up to date

 

This clause provides that an approved authority must ensure that its implementation plan is kept up date. In keeping an implementation plan up to date the approved authority should have regard to the progress of activities, programs and initiatives set out in the implementation plan and the result of any reviews of the implementation plan that have been undertaken.

 

Clause 104 - Publication of implementation plan

 

This clause provides that an approved authority must publish its up to date implementation plan, in a form that is readily accessible to the public, with an example of a readily accessible form being publication on the authority’s website.

 

The clause also provides that an approved authority must publish a report of any review conducted under clause 102, in a form that is readily accessible to the public and as soon as practicable after the review is conducted.

 

Clause 105 - Minister may give a direction in relation to an implementation plan

 

This clause provides that the Minister may give an approved authority a written direction in relation to its implementation plan and that in deciding to give such a direction, the Minister must have regard to certain matters including:

 

·          any relevant arrangement of the authority - including, for example, the National Education Reform Agreement, a bilateral agreement between the Commonwealth and a State under the National Education Reform Agreement, or a memorandum of understanding in relation to the education reform between the Commonwealth and a non-government school system;

·          whether the approved authority’s implementation plan complies with clause 99;

·          whether the activities, programs and initiatives set out in the  implementation plan are being undertaken in accordance with the implementation plan; and

·          whether the authority is complying with the requirements of the Act in relation to implementation plans.

 

The approved authority must comply with any such direction.

 

The giving of a direction under this clause is a reviewable decision. Further, if the Minister gives a direction under this clause, a report must be laid before each House of the Parliament dealing with the direction.

 

Directions that may be provided under this clause will primarily be on the basis of ensuring compliance by an approved authority meeting the commitments contained within its implementation plan. Circumstances may also arise where the Minister might need to give direction to an approved authority to alter its implementation plan to take account of changes to relevant arrangements or decisions by the Ministerial Council.

 

The note explains that the regulations may prescribe other matters the Minister may or must take into account when deciding whether to give a direction.

 

It is envisaged that for participating States and Territories the Minister would not invoke the powers under this provision until all the dispute resolution processes under the National Education Reform Agreement and any bilateral agreements under that Agreement were exhausted.

 

Clause 106 - Requirement to consider relevant arrangements before making regulations

 

This clause provides that, before regulations are made for the purposes of this Part, the Minister must have regard to relevant arrangements of approved authorities for any schools.



 

Part 8 — Actions Minister may take for failure to comply with this Act, and to require amounts to be repaid

 

Division 1 - Guide to this Part

 

Clause 107 - Guide to this Part

 

This clause provides an outline of Part 8 of the Bill which deals with actions the Minister may take for failure to comply with the Act and to require amounts to be repaid.

 

Division 2 - Actions Minister may take for failure to comply with this Act, and to require amounts to be repaid    

 

Clause 108 - Application of Division for failure to comply with this Act 

 

This clause provides that this Division applies to a State or Territory if a State or Territory fails to comply with the relevant conditions of financial assistance, if an approved authority or block grant authority for one or more schools located in the State or Territory, or a non-government representative body for a non-government school does not comply, is not complying or has not complied with relevant basic and ongoing requirements for approval. The Division also applies to a State or Territory if an approved authority or block grant authority for one or more schools located in the State or Territory, or a non-government representative body for a non-government school breaches a condition to which the authority or body’s approval is subject.

 

Clause 109 - Application of Division when amounts are required to be repaid           

 

This clause states that this Division applies to a State or Territory if the Commonwealth makes an overpayment, or a recoverable payment, under the Act to the State or Territory.

 

The Division also applies to a State or Territory if an amount was paid to the State or Territory, or to an approved authority or block grant authority for one or more schools located in the State or Territory, under other specified Acts, which were in excess of the amount that the State, Territory or authority was entitled to receive under those other Acts, and the whole or a part of that amount has not been repaid.

 

The Division also applies to a State or Territory if an amount of capital funding is paid to the State or Territory for a block grant authority or capital grants authority for a school, the amount is spent as capital expenditure, the school ceases to provide primary or secondary education and the regulations prescribe that the amount is recoverable.

 

Clause 110 - Actions the Minister may take

 

This clause provides for actions that the Minister may take in relation to a State or Territory to which the Division applies.  The actions are that the Minister may:

 

·          determine in writing that the State or Territory pay a specified amount  to the Commonwealth, subject to any limit prescribed by the regulations;

·          determine that an amount of financial assistance payable to the State or Territory under the Act is reduced by a specified amount; subject to any limit prescribed by the regulations;

·          delay further payment (or part of a payment) to the State or Territory under the Act.

In taking any such action, in relation to a State or Territory, the Minister must have regard to any relevant arrangement of the State or Territory.

 

An amount may be reduced or a payment delayed:

 

·          for one or more schools for a year; or

·          for an approved authority for a school for a year; or

·          for a capital grants authority or a block grant authority for a school for a year; or

·          for a non-government representative body for a non-government school for a year.

 

Decisions under this clause are reviewable decisions. 

 

The clause provides that a determination by the Minister is not a legislative instrument. This provision is for the sake of clarity and does not affect the legal character of such a determination, which would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Clause 111 - Effect of determination under paragraph 110(1)(a) or (b)

 

This clause provides that if the Minister determines under paragraph 110(1)(a) that a State or Territory pay an amount to the Commonwealth then, subject to any regulations made for the purposes of clause 24, that amount is a debt due by the State or Territory to the Commonwealth, and may be recovered by the Minister in a court of competent jurisdiction.

 

If the Minister determines under paragraph 110(1)(b) that the amount payable to a State or Territory under the Act is to be reduced by a specified amount for one or more schools, for an approved authority, a capital grants authority or a block grant authority for a school for a year or for a non-government representative body for a non-government school for a year, then the amount that is payable to the State or Territory for that school, authority or body for the year under Division 2 or 5 of Part 3, Part 4, subsections 67(1) and (2) and Divisions 3 and 4 of Part 5 (as the case requires), is reduced by the specified amount.

 

Division 3 - Recoverable payments

 

Clause 112 - Recoverable payments

 

This clause provides that the Commonwealth is taken to have the power to make a recoverable payment and money for the recoverable payment is appropriated accordingly. This ensures that where the Commonwealth makes a payment in purported reliance on the Act, but that payment is in fact made in circumstances where there is no legal authority to do so, the payment is still legally valid.

 

Clause 113 - Reports about recoverable payments

 

This clause provides that the Secretary must include in the Department’s annual report for a financial year specified details of any recoverable payments:

 

·          that departmental officials are aware were paid during that financial year;

·          that departmental officials became aware during the financial year that were paid during an earlier financial year.

 

It is often the case that the circumstances giving rise to a recoverable payment, i.e. a payment that is not legally supported, will not be readily identifiable, and are not in fact identified for many years after the payment is made. This clause ensures that when the Department becomes aware of recoverable payments, it reports them in the year it becomes aware of them.



 

Part 9 — Miscellaneous

 

Division 1 - Guide to this Part

 

Clause 114 - Guide to this Part

 

This clause provides an outline of Part 9 of the Bill which deals with rules relating to applications made under the Act, review of decisions under the Act and other miscellaneous matters.

 

Division 2 - Rules relating to applications

 

Clause 115 - Approved form for applications

 

This clause provides that the Minister may approve a form for applications made under the Act and if the Minister does so, any such application must be in the approved form.

 

Clause 116 - Request for further information

 

This clause provides that the Minister may, by written notice, request further information be provided by a person applying under a provision of the Act and specify a period, of at least 28 days for this information to be provided.  It also provides that the Minister may refuse to consider such an application until any such information has been provided and that the application is deemed withdrawn if the information is not provided within the specified period.

 

Clause 117 - Withdrawal of application

 

This clause provides that a person applying under a provision of the Act may withdraw their application at any time before the Minister makes a decision on the application.

 

Division 3 - Review of decisions

 

Clause 118 - Reviewable decisions     

 

This clause provides a table of reviewable decisions, outlines the provision under which each decision is made and the relevant person for each decision .  It also provides for the regulations to prescribe a decision made under a specified provision of the regulations as a reviewable decision and specify the relevant person for such a decision.

 

The table of reviewable decisions is intended to be a comprehensive list of the administrative decisions made by the Minister under the Act, with the exception of some public interest powers that are exercisable solely by the Minister (to which alternative accountability processes apply).

 

Clause 119 - Notice of decision

 

This clause requires that after a reviewable decision is made that the person who made the decision must give written notice to the relevant person for the decision, giving the terms and reasons for the decision and notice of the person’s right to have the decision reviewed, but provides that a failure to do so does not affect the validity of the decision.

 

Clause 120 - Internal review of reviewable decisions

 

This clause provides that a relevant person for a reviewable decision may apply to the Secretary for review of the decision, unless the decision was made by the Minister or the Secretary personally. It also provides the requirements of such an application, the persons entitled to review such a decision, their powers and discretions with respect to carrying out the review and the possible outcomes of a review.  It also provides that the decision on review is taken to have been made (other than for the purposes of clause 118) under the provision the original decision was made.

 

The clause specifies the date on which the decision on review takes effect and the means by which the relevant person must be notified of the decision.

 

Clause 121 - Secretary or internal reviewer may require further information from applicants

 

This clause provides that the Secretary or internal reviewer may require further information from a person who has made an application for review and refuse to consider the application until this information has been provided.

 

Clause 122 - Review by the Administrative Appeals Tribunal

 

This clause provides that an application may be made to the Administrative Appeals Tribunal for review of a reviewable decision made by the Minister or Secretary personally, or an internal review decision of the Secretary or internal reviewer. However an application may not be made in respect of a decision to determine a total entitlement for an approved authority for a year if the amount of financial assistance to which the determination relates is transitional recurrent funding for participating schools. Such transitional funding determinations are subject to internal review only.

 

An application may be made only by, or on behalf of, the relevant person for the reviewable decision.

 

Division 4 - Miscellaneous

 

Clause 123 - False or misleading information

 

This clause provides that where a decision is made under a provision of the Act, and that decision was based on or took account of information that was false or misleading in a material particular, then the decision may be set aside and a new decision made under the provision. It also stipulates that the new decision may take effect from any day determined by the person making the decision (including a day that is earlier than the day the original decision was made).

 

Clause 124 - Secretary may arrange for use of computer programs to make decisions

 

This clause provides that the Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Minister may make decisions under the Act. A decision made under such an arrangement, is, for the purposes of the Act (except clause 120 and paragraph 122(1)(a)) taken to be a decision may by the Minister personally.

 

Clause 125 - Making records of, using, disclosing or publishing protected information

 

This clause provides that the Minister may

 

·          make a record of, use, or disclose protected information (including protected information that is personal information) in accordance with the regulations;

·          impose conditions on any record, use or disclosure of protected information; and

·          publish, in any manner he or she thinks fit, protected information (except personal information).

 

Regulations may prescribe the person or body to whom protected information may be disclosed, the purposes for which protected information may be recorded, used, or disclosed and conditions (other than conditions determined by the Minister) on any record, use or disclosure of protected information.

 

Clause 126 - Appropriation

 

This clause provides that the Consolidated Revenue Fund is appropriated for the purposes of making payments of financial assistance under the Act to a State or Territory in accordance with determinations made regarding recurrent funding for schools and capital funding for block grant authorities.

 

Funding for capital grants authorities and non-government representative bodies, and funding for special circumstances payments, would not be appropriated under the Act, and would normally be provided for in annual Appropriation Acts.

 

Clause 127 - Annual report by Minister

 

This clause provides that the Minister must cause a report to be laid before each House of the Parliament as soon as practicable after 30 June each year dealing with:

 

·          financial assistance paid in the previous year;

·          the application of any such financial assistance;

·          any decisions made relating to:

o    public interest test in considering whether to approve a person as an approved authority;

o    approved authorities for government schools not taken to satisfy basic authorities;

o    variation or revocation of approval of approved authority in public interest;

o    a direction given by the Minister in relation to an implementation plan.

 

Clause 128 - Review of, or for the purposes of, the National Education Reform Agreement

 

The National Education Reform Agreement contains provisions relating to reviews of its content, including two comprehensive reviews, as well as more numerous reviews into specified aspects of the agreement and the funding model embedded in it.

 

This clause provides that where a review is conducted of, or for the purposes of, the National Education Reform Agreement, the Minister must consider the impact of that review, if any, on the Act.

 

Clause 129 - Delegation

 

This clause provides that the Minister may, by written instrument, to delegate all or any of the Minister’s powers and functions under the Act, except for those listed in subsection (2), to the Secretary or an APS employee in the Department.

 

The Minister must not delegate the following powers or functions:

 

·          determining SES scores by legislative instrument;

·          powers or functions relating to public interest test in considering whether to approve a person as an approved authority;

·          approved authorities for government schools not taken to satisfy basic requirements;

·          variation or revocation of approval of approved authority in public interest.

 

Further it is provided that the, Secretary may, by written instrument, delegate all or any of his or her powers and functions under the Act, to an SES employee or acting SES employee in the Department.

 

Clause 130 - Regulations

 

This clause provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The regulations may prescribe certain penalties for offences in the regulations relating to the requirement to provide information relating to a school’s census or making records, using or disclosing protected information. Also, if a provision of the Act or regulations permits or requires a decision to be made, the regulations may prescribe matters that the decision-maker may or must have regard to in making the decision.  

 

The regulations may allow the Minister to determine matters in relation to anything in relation to which regulations may be made.

 

The clause provides that despite subsection 14(2) of the Legislative Instruments Act 2003 , the regulations may provide in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time. The purpose of this provision is to enable reference in the regulations to documents prepared and published from time to time by bodies including the Australian Curriculum Assessment and Reporting Authority, Australian Institute for Teaching and School Leadership and the Australian Bureau of Statistics (ABS), including documents prepared for and endorsed by the Standing Council on School Education and Early Childhood. Such documents include documents relating to the curriculum, professional teacher and teacher training standards, action plans and programs to address student disadvantage (e.g. Aboriginal and Torres Strait Islander Education Plan), and various ABS indices that may be relevant to determining amounts of indexation under the Act.

 

Before any regulations are made, the Minister must consult the Ministerial Council.



 

Statement of Compatibility with Human Rights

 

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

 

AUSTRALIAN EDUCATION BILL 2012

 

Incorporating amendments to be moved on behalf of the Government

 

The Bill, incorporating amendments to be moved on behalf of the Government, is  compatible with 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 amendments

 

Recognising through the Preamble that a child’s educational opportunities should be determined by their aspirations rather than their background, the Bill establishes a broad framework to enhance the performance of Australia’s schools so that they are fair, equitable and high-performing.

 

This includes a national goal of ensuring that Australia’s schools are both highly equitable and of a high quality, and therefore capable of ensuring that Australia’s educational performance results in Australia being in the top five in reading, writing, mathematics and science by 2025 in recognised international testing.

 

In order to achieve this goal, the Australian Government commits to work with States, Territories and the non-government school sector to implement a series of reforms under the National Plan for School Improvement.

 

The Australian Education Bill provides the legislative framework at a Commonwealth level that sets out the broad reform directions for Australian schooling to reach the 2025 goals, the details of Commonwealth needs-based funding arrangements for government and non-government schools to support those goals, and the reform directions under the National Pan for School Improvement.

 

All recurrent Commonwealth funding for schooling will be delivered through fair and transparent needs based arrangements, providing new investment to support reforms that will help to improve each student's achievements at school. A new Schooling Resource Standard will deliver a per student level of funding based on current funding levels for high achieving, efficient schools. On top of this base amount of funding, additional funding will be provided to meet the costs of helping a child overcome disadvantage.

 

The evidence based reforms in the National Plan for School Improvement are focused on quality teaching, quality learning, transparency and accountability, meeting student need and empowering school leadership.

 

Human rights implications

 

The Bill promotes the right to equality and non-discrimination, the right to education and the rights of people with disability in the context of education, and the right to the enjoyment of just and favourable conditions of work, in the context of school education and teaching.

Right to equality and non-discrimination

 

The right to equality and non-discrimination are found throughout the treaties, including Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR), Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 2 of the Convention on the Rights of the Child (CRC). The right to equality and non-discrimination confirms that all people are equal and deserving of the same respect. It recognises that people may need to be treated differently in order to achieve equality, for example, by targeting disadvantage.

 

In particular, Article 2 of the CRC requires the rights in the Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

The right to equality and non-discrimination is promoted as the Bill contains a commitment to provide funding to support education based on need. This need will include the given circumstances of certain categories of Australian students who currently experience educational disadvantage. The aim of this different treatment is designed to support the overall participation, through access to education, in the social, civil, political, economic and cultural rights given under United Nations’ Conventions.

 

Right to education

 

The right to education can be found in Article 13 of the ICESCR, Articles 28 and 29 of the Convention on the Rights of the Child, Article 5(e)(v) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 10 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD). The rights of people with disability is also found in Article 24 of the CRPD.

 

The right to education recognises the important personal, societal, economic and intellectual benefits of education.  It requires education be available, safe, and appropriately resourced, dependent on the need of the child.

 

The United Nations Committee on Economic, Social and Cultural Rights has stated that education should be available, ‘accessible to all, especially the most vulnerable groups’ without discrimination on any of the prohibited grounds, physically accessible and economically accessible (General Comment 13).

 

The right to education and the rights of people with a disability, specifically children, are promoted as the needs-based system of education funding being implemented through the Bill is to ensure that all students can be supported by quality education, and that the disadvantage associated with background is recognised and targeted with additional support to ensure equity and equality in education outcomes. Additional loadings for disadvantage are provided for low socioeconomic status, Indigenous students, low English proficiency, students with disability, school size and school location - recognising the additional costs for outside metropolitan areas.

 

This Bill also strengthens the link between funding and school improvement, to improve the educational outcomes of students across the five reform areas.  Each State, Territory, system and school will have its own plan for how it will implement these reforms through implementation plans and school improvement plans.  What this will mean for schools will vary from school to school, depending on the needs of the students. Schools will be able to decide what they need to do for their students, using additional funding being provided, but it could include teaching support like working with literacy and numeracy specialists, or  schools could choose to employ more teachers, teacher aides, specialist support staff or schools can also focus investment in training, mentoring and release time for teachers, including professional development.

 

The Bill further promotes the rights of students with disability with the requirement for all approved authorities for a school or schools to ensure compliance with relevant disability discrimination laws of the Commonwealth and States/Territories. This is not a new requirement but has been made more explicit in the legislation.

 

Right to the enjoyment of just and favourable conditions of work

 

While the Commonwealth is not responsible for the training and development of teachers (particularly those already with relevant skills and expertise), it is the Commonwealth’s intention to ensure teachers have the necessary skills and support to ensure that they are able to deliver high quality teaching to students, as part of promoting the right to education, and to achieve the governments goals of high equity and quality education. Specifically, the National Plan requires that the work of teachers will reflect rigorous professional standards and best practice.

 

This engages Article 7 of the ICESCR, which recognises the right to just and favourable conditions of work.

 

Under the Bill, States and Territories are required to implement (or continue to implement) national policy initiatives relating to school education in accordance with regulations, recognising the regulatory responsibilities of States and Territories for school education.  These national policy initiatives are outlined as including overseeing the State/Territory school education systems, supporting work of national education institutions, and improving the quality of teachers (including through higher professional standards, better professional development and nationally consistent registration processes). These national policy initiatives are overseen by the Standing Council on School Education and Early Childhood established under the Council of Australian Governments to consider school education matters.

 

Higher professional standards, demonstrated through appropriate levels of professional knowledge, practice and engagement will be supported through the framework provided by the Australian Professional Standards for Teachers. The Standards set out a public statement, defining and outlining the work of teachers and teacher quality. This structured guidance describes the recommended professional training and evaluation trajectory.  The Bill will support the implementation of the Standards to further assist teachers in informing their development of professional learning and guide teachers to be able to better support their students. The additional clarity will provide developmental direction for teachers and will guide qualification for professional registration, providing transparency to a fair, just and favourable work-environment.

 



 

The Bill also includes an ongoing requirement for funding for all approved authorities, including States and Territories for government schools, and authorities for non-government schools, to have processes in place for enhancing principal and teacher performance and professional development, and to implement the curriculum. These are not new requirements for schools, but recognise the key importance of enhancing teacher quality in improving student outcomes.

 

 

The Hon Peter Garrett MP AM,

Minister for School Education,

Minister for Early Childhood and Youth