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Schools Assistance Bill 2008

Part 3 Authorisation of financial assistance

Division 1 Simplified outline of Part

11   Simplified outline

             (1)  This section is a simplified outline of this Part.

             (2)  Financial assistance to a State for a non-government school, or another non-government body, must not be paid unless there is an agreement between the Commonwealth and the relevant authority of the school or body.

             (3)  The agreement must cover matters including the following:

                     (a)  national performance and transparency requirements (see Subdivision B of Division 3);

                     (b)  grant acquittal and reporting requirements (see Subdivision C of Division 3);

                     (c)  monitoring, evaluation and compliance requirements (see Subdivision D of Division 3).

             (4)  The following additional conditions apply to the grant of financial assistance to a State for a non-government school or another non-government body (see Divisions 2 and 4):

                     (a)  in the case of financial assistance for a school—the school must be an approved school;

                     (b)  the school or body must be financially viable;

                     (c)  the State must pay amounts of assistance to the relevant authority of the school or body as soon as practicable (or within an extended period allowed by the Minister).

             (5)  If a non-government school, or another non-government body, breaches a funding agreement, the Minister may (under the agreement) require the school or body to repay an amount to the Commonwealth. The Minister may also reduce or delay the amount of other payments for the school or body under this Act.

Note:          See section 27.

             (6)  If a State fails to pass on an amount of financial assistance to a non-government school, or another non-government body, for which financial assistance is granted under this Act, the Minister may require the State to repay an amount to the Commonwealth.

Note:          See Division 4.



 

Division 2 Authorised financial assistance

12   Authorised financial assistance—funding agreements

             (1)  The Minister must not authorise a payment to a State under this Act for a non-government school, or another non-government body, unless the relevant authority of the school or body has made an agreement (a funding agreement ) with the Commonwealth that complies with Division 3 (Funding agreements).

             (2)  A funding agreement may have been made before the commencement of this Act.

13   Authorised financial assistance—schools must be approved

                   The Minister must not authorise a payment to a State under this Act for education at a particular level at a particular location at a non-government school unless the school is an approved school for that level and location.

Note:          Part 7 deals with the approval of schools.

14   Authorised financial assistance—State recognition of schools etc.

Recognition of school

             (1)  The Minister may refuse to authorise a payment to a State under this Act for a non-government school during any period when the State Minister does not recognise the school.

Note:          The Minister must revoke the school’s approved school determination (see section 122).

Recognition of level of education at school

             (2)  The Minister may refuse to authorise a payment to a State under this Act for a non-government school for a particular level of education provided at a non-government school during any period when the State Minister does not recognise the school for that level of education.

Recognition of location for level of education

             (3)  The Minister may refuse to authorise a payment to a State under this Act for a non-government school for provision of a level of education by the school at a particular location during any period when the State Minister does not recognise the school for that level of education provided at the location.

Non-recognition under State law

             (4)  For the purposes of this section, without limiting subsections (1) to (3), a period during which the State Minister concerned does not recognise a school includes a period (including a temporary period) during which the school is not permitted under the law of the State concerned to provide:

                     (a)  in relation to the condition in subsection (1)—education (at whatever level) at the school; or

                     (b)  in relation to the condition in subsection (2)—the level of education concerned at the school; or

                     (c)  in relation to the condition in subsection (3)—the level of education concerned at the school, at the location concerned.

15   Authorised financial assistance—financial viability

                   The Minister may refuse to authorise, or may delay, a payment to a State under this Act for a non-government body (including a non-government school), or the relevant authority of such a body, if:

                     (a)  either (or both) of the following applies:

                              (i)  the body or authority is a body corporate that is being wound up;

                             (ii)  the affairs of the body or authority are under any form of external control (for example, the control of a manager) under a law of the Commonwealth or a State; or

                     (b)  the Minister considers that:

                              (i)  the liabilities of the body or authority are greater than its assets; or

                             (ii)  the body or authority is (and is likely to continue for a substantial period to be) unable to pay its debts as and when they fall due for payment; or

                     (c)  if a law of the Commonwealth or a State requires the body or authority to be audited—the relevant audit:

                              (i)  is expressed to be qualified; or

                             (ii)  expresses concern about the financial viability of the body or authority.



 

Division 3 Funding agreements

Subdivision A Purpose of grants

16   Funding agreements—purpose of grants

             (1)  A funding agreement must require the relevant authority for the non-government school, or other non-government body, to ensure that amounts received by the relevant authority from the State, as a result of the payment to the State for the school or body, are spent for purposes that are:

                     (a)  determined by the Minister; and

                     (b)  set out in the agreement.

             (2)  Without limiting subsection (1), the purposes for which an amount may be spent include the purpose of paying administrative expenses incurred by the relevant authority.

Note:          Financial assistance under this Act may be given for recurrent expenditure, capital expenditure or targeted expenditure (see Parts 4, 5 and 6).

Subdivision B National school performance and transparency requirements

17   Funding agreements—national student assessments

National student assessments

             (1)  For the purposes of this section, the regulations may prescribe assessments ( national student assessments ) against specified educational standards, including (but not limited to) an assessment against national standards in reading, writing, language conventions and numeracy for students in years 3, 5, 7 and 9 at school.

Requirement for national student assessments

             (2)  A funding agreement for a non-systemic school, or for an approved school system, must require the relevant authority for the school or system to ensure that each national student assessment specified in the regulations as applying to the school (or to the schools in the system) is carried out:

                     (a)  no later than a day or days (if any) determined by the Minister; and

                     (b)  as prescribed by the regulations.

Note:          The regulations may provide that the assessments are to be carried out only for schools of a particular class, and may make different provisions for assessments at schools of different classes (see subsection 33(3A) of the Acts Interpretation Act 1901 ).

             (3)  Without limiting subsection (2), regulations made for the purposes of that subsection may require a national student assessment to be carried out:

                     (a)  for the students specified in the regulations; and

                     (b)  in a way prescribed by the regulations; and

                     (c)  with the frequency prescribed by the regulations.

Note:          The regulations may provide that any particular assessment is to be carried out only for students of a particular class, and may make different provisions for students of different classes (see subsection 33(3A) of the Acts Interpretation Act 1901 ).

Applying, adopting or incorporating matter contained in other instruments

             (4)  Despite subsection 14(2) of the Legislative Instruments Act 2003 , regulations made for the purposes of this section may make provision 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.

18   Funding agreements—national reports on the outcomes of schooling

             (1)  A funding agreement for a non-systemic school, or for an approved school system, must require the relevant authority for the school or system to do each of the following:

                     (a)  in the case of an agreement for a non-systemic school—ensure that the school participates in preparing a national report (or reports) on the outcomes of schooling;

                     (b)  in the case of an agreement for an approved school system—ensure that the system, and each school in the system, participates in preparing a national report (or reports) on the outcomes of schooling;

                     (c)  give the Minister (for inclusion in a report mentioned in paragraph (a) or (b)) a report (or reports), of a kind (or kinds) required by the Minister, addressing the requirements for performance information prescribed by the regulations.

             (2)  A requirement mentioned in paragraph (1)(a), (b) or (c) must be satisfied not later than:

                     (a)  if the Minister determines a day or days for the purposes of that paragraph—that day or days; or

                     (b)  in any other case—a day or days that will allow publication of any report mentioned in paragraphs (1)(a) and (b) within one year after the end of each program year.

19   Funding agreements—individual school information

             (1)  A funding agreement for a non-systemic school, or an approved school system, must require the relevant authority for the school or system to ensure that the school, or each school in the system, gives the Minister, or another person or body determined by the Minister, a report (or reports) about individual school information, specified by the regulations, for the school.

             (2)  The report (or reports) mentioned in subsection (1):

                     (a)  must be of a kind (or kinds) required by the Minister; and

                     (b)  must be given to the Minister:

                              (i)  from time to time, as required by the Minister; and

                             (ii)  in the way (if any)determined by the Minister; and

                            (iii)  no later than a day or days (if any) required by the Minister.

20   Funding agreements—reporting to parents etc.

Scope

             (1)  This section applies in relation to a student who attends a non-systemic school, or a school that is a member of an approved school system.

Reports about student attending school

             (2)  A funding agreement for the school or system must require the relevant authority for the school or system to give each person responsible for the student a report (or reports) concerning the student that complies with this section.

             (3)  A report complies with this section if the report:

                     (a)  uses plain language, and is readily understandable by each person responsible for the student; and

                     (b)  gives an accurate and objective assessment of the student’s progress and achievement; and

                     (c)  includes an assessment of the student’s achievement:

                              (i)  against any available national standards; and

                             (ii)  relative to the performance of the student’s peer group at the school; and

                     (d)  meets any other requirements that are specified in the regulations; and

                     (e)  is given to each person responsible for the student:

                              (i)  in a way prescribed by the regulations; and

                             (ii)  with the frequency prescribed by the regulations.

21   Funding agreements—publication by schools of information relating to schools

             (1)  A funding agreement for a non-systemic school, or an approved school system, must require the relevant authority for the school or system to ensure that the school, or each school in the system, makes the information specified in the regulations relating to the school for a program year publicly available within 6 months after the end of the program year.

             (2)  The information mentioned in subsection (1) must be made publicly available in the way (if any) specified by the regulations.

22   Funding agreements—national curriculum

             (1)  A funding agreement for a non-systemic school, or an approved school system, must require the relevant authority for the school or system to ensure that the school, or each school in the system, implements the national curriculum prescribed by the regulations for primary education or secondary education (or both, as applicable).

             (2)  The requirement mentioned in subsection (1) must be satisfied on or before 31 January 2012.

Subdivision C Grant acquittal and reporting requirements

23   Funding agreements—acquittal of grants

             (1)  A funding agreement must require the relevant authority for the non-government school, or other non-government body:

                     (a)  to give the Secretary of the Department a certificate by a qualified accountant stating whether an amount equal to the sum of the amounts mentioned in subsection 16(1) (purpose of grants) has been spent (or committed to be spent) for the program year for the purposes mentioned in that subsection; and

                     (b)  to give the Secretary of the Department the certificate on or before 30 June next following the program year concerned, or another day allowed by the Minister.

             (2)  In this section:

qualified accountant means:

                     (a)  a qualified accountant within the meaning of the Corporations Act 2001 ; or

                     (b)  a person registered (or taken to be registered) as a company auditor under the Corporations Act 2001 ; or

                     (c)  a person approved by the Minister as a qualified accountant under subsection (3).

             (3)  The Minister may approve a person as a qualified accountant for the purposes of subsection (2).

24   Funding agreements—reports on programs and financial operations

             (1)  A funding agreement must require the relevant authority for the non-government school, or other non-government body, to ensure that a report (or reports), of a kind (or kinds) required by the Minister, is given to the Minister in relation to each of the following:

                     (a)  programs of financial assistance provided under this Act, so far as they relate to the relevant authority;

                     (b)  the financial operations (including the financial viability and funding sources) of:

                              (i)  in any case—the school or other body; and

                             (ii)  in the case of an approved school system—the schools (including each particular school) in the system.

             (2)  A report mentioned in subsection (1) must be given to the Minister no later than a day or days (if any) determined by the Minister.

Subdivision D Monitoring, evaluation and compliance

25   Funding agreements—monitoring

Monitoring relevant authority

             (1)  A funding agreement must require the relevant authority for the non-government school, or other non-government body, to allow a person (an authorised person ) authorised in writing by the Minister for the purpose to do either or both of the following:

                     (a)  to have full and free access to accounts, records and documents of the relevant authority relating to information that the authority is required under the agreement to give to the Minister;

                     (b)  to take extracts from, or make copies of, any such accounts, records and documents.

Monitoring schools

             (2)  Without limiting subsection (1), a funding agreement for a non-systemic school, or an approved school system, must allow an authorised person to have full and free access to each campus of the school, or of each school in the system, for the following purposes:

                     (a)  the purposes mentioned in paragraphs (1)(a) and (b);

                     (b)  to undertake any reasonable inspection of the campus, and of the students at the campus, including an inspection for the purpose of counting the number of students at the campus.

Reasonable notice, access times and assistance

             (3)  For the purposes of this section, the funding agreement:

                     (a)  must allow for access mentioned in this section to be given only on condition that:

                              (i)  in the case of a non-systemic school—the authorised person gives reasonable notice to the relevant authority for the school; and

                             (ii)  in the case of a systemic school—the authorised person gives reasonable notice to the relevant authority for the approved school system concerned, and to a person responsible for the operation of the school; and

                            (iii)  in any case—the access is given at reasonable times; and

                     (b)  must provide for the authorised person to be given such help as he or she requires to exercise any power mentioned in this section.

26   Funding agreements—evaluation

             (1)  A funding agreement must require the relevant authority for the non-government school, or other non-government body, to ensure that the school or body participates in evaluating the outcomes of programs of financial assistance provided under this Act for the school or body.

             (2)  Without limiting subsection (1), if that subsection applies to a relevant authority for an approved school system, the funding agreement must require the authority to ensure that each school in the system participates in evaluating the outcomes of programs of financial assistance provided under this Act for the school.

27   Funding agreements—failure to comply

Failure to comply with funding agreement

             (1)  A funding agreement must contain a provision to the effect that any or all of the consequences set out in this section may apply if the relevant authority does not comply with a requirement of the agreement:

                     (a)  within the period required by or under the agreement; or

                     (b)  within a further period allowed by the Minister (whether the Minister allows this before or after the end of the period required by or under the agreement).

Consequences of failure to comply

             (2)  If the Minister so determines, the relevant authority must pay to the Commonwealth a specified amount (not more than the sum of the amounts mentioned in subsection 16(1) (purpose of grants)).

             (3)  The Minister may determine that any other amount or amounts of financial assistance to the State under this Act for the school or body is to be reduced by an amount or amounts totalling not more than:

                     (a)  if the Minister makes a determination under subsection (2)—the amount required to be paid under the determination; or

                     (b)  in any other case—the sum of the amounts mentioned in subsection 16(1).

Note:          A determination reducing the amount of a payment is made under section 34.

             (4)  The Minister may delay the making of any further payment (or a part of a further payment) to the State under this Act for the school or body until the relevant authority complies with the requirement set out in the agreement.

28   Funding agreements—unauthorised amounts

                   A funding agreement must contain a provision that, if the sum of the amounts mentioned in subsection 16(1) (purpose of grants) exceeds the total amount that was properly authorised to be paid to the State for the school or body:

                     (a)  the relevant authority must, if the Minister so determines, pay to the Commonwealth an amount (the determined amount ) equal to the excess; and

                     (b)  in the event that the authority does not pay the determined amount to the Commonwealth, the Minister may make a further determination reducing any other amount or amounts of financial assistance for the State under this Act for the school or body by an amount or amounts not more than the determined amount.

Note:          A further determination mentioned in paragraph (b) is made under section 44.

Subdivision E Other provisions in funding agreements

29   Funding agreements—other provisions

                   A funding agreement (or a funding agreement as varied) must include the following provisions:

                     (a)  the provisions mentioned in any of the following paragraphs of this Act (if applicable):

                              (i)  paragraph 135(b) (the inclusion of new schools in an approved school system);

                             (ii)  paragraph 140(e) (prerequisites for proposals to end membership of approved school systems);

                            (iii)  paragraph 158(d) (changes of approved authorities);

Note:       These provisions relate to the carrying-over of obligations under funding agreements when changes are made to the approvals concerned.

                     (b)  any provisions prescribed by the regulations;

                     (c)  any other provisions that the Minister considers appropriate in relation to the relevant authority, school or body.



 

Division 4 Conditions applying to the States

30   Conditions applying to the States—payment of financial assistance to non-government schools and bodies

             (1)  The grant to a State because of a provision of this Act of financial assistance for a non-government school, or another non-government body, for a program year is subject to the condition that the State is required:

                     (a)  to pay to the relevant authority of the school or body each amount paid to the State for the school or body because of the provision; and

                     (b)  when making such a payment, to describe the amount paid to the relevant authority as a payment made out of money paid to the State by the Commonwealth because of the provision.

             (2)  It is also a condition of the grant to the State that the payment of each amount must be made:

                     (a)  as soon as practicable after the amount is paid to the State; or

                     (b)  within a further period allowed by the Minister (whether the Minister allows this before or after the end of the time mentioned in paragraph (a)).

31   Conditions applying to the States—requirement to repay amounts to Commonwealth

             (1)  A grant to a State mentioned in section 30 is subject to the condition that, in the event that the State does not comply with the condition mentioned in subsection 30(1), the State is required, if the Minister so determines, to repay to the Commonwealth the amount stated in the determination.

             (2)  The amount stated in a determination under subsection (1) must not exceed the sum of the amounts of financial assistance paid to the State under the provision for the school or body for the program year concerned.



 

Division 5 Repayment of financial assistance

32   Repayment of financial assistance—relevant considerations

Scope

             (1)  This section applies if the Minister is considering whether to make:

                     (a)  a determination, under a provision of a funding agreement mentioned in section 27 or 28, that the relevant authority of a school or body is to pay an amount to the Commonwealth; or

                     (b)  a determination under subsection 31(1) that a State is to repay an amount to the Commonwealth.

Relevant considerations

             (2)  In considering whether to make the determination, the Minister must take into account all relevant matters, including whether the relevant authority or State gave all relevant information to the Commonwealth before the grant of financial assistance was made.

33   Repayment of financial assistance—recovery from States as debts

                   An amount payable by a State to the Commonwealth under this Act is a debt due by the State to the Commonwealth.

34   Repayment of financial assistance—failure by relevant authorities to repay amounts

Scope

             (1)  This section applies if:

                     (a)  under a funding agreement (or an agreement under section 30 of the former Act) between the Commonwealth and the relevant authority of a non-government school, or another non-government body, the Minister or the relevant Minister (as appropriate) has determined that the authority is to pay an amount to the Commonwealth; and

                     (b)  an amount (the amount repayable ) that is all or a part of the amount mentioned in paragraph (a) remains unpaid.

Reduction of authorised amount

             (2)  The Minister may make a determination reducing an amount that is authorised to be paid to a State for the school or body under any provision of this Act in any program year by an amount not more than the amount repayable.

Later increase of authorised amount

             (3)  The Minister may make a determination under a provision of this Act increasing the maximum amount that may be paid to a State for the school or body for any purpose under that provision in any program year by an amount or amounts totalling not more than the amount of any reduction under subsection (2).

             (4)  It does not matter whether the reduction was made in relation to the same provision of this Act as the provision of this Act mentioned in subsection (3), or a different provision.