Details of the Financial Framework (Supplementary Powers) Amendment

(Education, Skills and Employment Measures No. 2) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 2) Regulations 2021.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 3 of Schedule 1AB (item 41, column headed "Purpose")

 

This item amends table item 41 in Part 3 of Schedule 1AB by expanding the purpose of a grant to DemoDAIRY Foundation Limited (the Foundation) to fund the Powell Legacy Fund to provide scholarships to eligible persons to further their education, whereas such scholarships were previously limited to eligible school students. The Department of Education, Skills and Employment (the department) has responsibility for this initiative.

 

This item also amends table item 41 by moving the reference to the benefits to students aspect of the social welfare power (within the meaning of paragraph 51(xxiiiA) of the Constitution) to the description of the grant purpose from the additional operation provision. The effect of this technical amendment is to align table item 41 with the current approach to referring to constitutional heads of power in table items in Schedule 1AB.

 

The Government has provided a one-off grant of $100,000 to the Foundation in 2019-20 to provide school students from the Corangamite Shire, or with an affiliation with the Port Campbell or Timboon communities, with scholarships from the Powell Legacy Fund. These scholarships support school students to undertake courses of study offered by a recognised and qualified education provider that result in a recognised accreditation or qualification (such as undergraduate, postgraduate or TAFE studies) or work experience or work integrated learning.

 

The amended table item 41 will enable the Powell Legacy Fund to be expanded to support a broader range of eligible persons, not limited to school students, to further their skills and improve their learning outcomes to be able to contribute to their regional communities. This expansion will be achieved through a variation to the existing grant agreement with the Foundation.

 

The Powell Legacy Fund honours the work of the late Ross and Andy Powell who were involved in volunteering organisations related to education and agriculture in the Corangamite Shire. The Foundation supports the existing dairy industry, training organisations and individuals in South Western Victoria by building capacity and leadership in dairy farm business management and promoting innovative learning approaches and new technologies. The Foundation provides funding for tertiary training in dairy-related sciences through grants, scholarships and fellowships, and makes grants to individuals for education or research relating to dairy sciences. The Foundation seeks a sustained improvement in farm profitability and farmer lifestyles.

 

The Powell Legacy Fund contributes to the Government's objective to ensure all Australian students have access to high quality education. It also aligns with government priorities to increase tertiary participation rates in regional and remote Australia and improve post-school learning outcomes. The then Minister for Education, the Hon Dan Tehan MP, announced the grant to the Powell Legacy Fund on 8 April 2020 (ministers.dese.gov.au/tehan/powell-legacy-fund).

 

The Powell Legacy Fund will provide opportunities for eligible persons in a district where they may not otherwise have the opportunity to further their education due to financial hardship. It will support eligible persons to undertake:

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

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

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

 

It is anticipated that each year two scholarships of up to $5,000 will be awarded to two people, up to an investment of $10,000 per person. It is anticipated that the Australian Government grant funding, industry contributions and assets held by the Foundation would allow the Powell Legacy Fund to run for around 10 years.

 

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

 

Funding was provided to the Foundation by way of a one-off, ad hoc grant, as it has a well-established record of delivering grants and scholarships. The process for awarding the grant to the Foundation was conducted in accordance with the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). The final decision on funding for the Foundation was made by the then Minister for Education in accordance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The award of the grant was reported on the GrantConnect website at www.grants.gov.au (refer GA85874).

 

The department engaged the Community Grants Hub to develop the initial grant opportunity guidelines, which were made available to the Foundation via a letter of invitation from the Community Grants Hub. The Foundation signed the letter of acceptance in response, and the department entered into a grant agreement with the Foundation. The existing grant agreement with the Foundation will be varied to expand eligibility for the scholarships. The Community Grants Hub will remain responsible for administering the grant.

 

Independent merits review was not available for the grant to the Foundation as the decision related to providing a one-off payment to a certain provider. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.16 of the guide, What decisions should be subject to merit review?).

 

Decisions made by the Foundation to allocate funding from the Powell Legacy Fund will also not be subject to independent merits review. This is because the decisions relate to the allocation of a finite resource and overturning a decision to allocate funding to one person would affect an allocation that has already been made to another person. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.16 of the guide, What decisions should be subject to merit review?).

 

Due to the finite funding available and the restricted geographical location involved, consultation was limited to discussion between the office of the Minister for Education and Youth, the department and key stakeholders, including the Foundation, The VET Group, Timboon P12 School, Port Campbell Surf Life Saving Club, and the Powell family. All parties are supportive of an expansion to the scholarship program to provide increased opportunities to eligible people in the region who may not otherwise have been able to pursue further education beyond school. Restricting the program to being available only to school students negates an opportunity to community members who are otherwise eligible for the program. All parties agree that if the opportunity is extended to all eligible people in the region, the program outcomes will be expedited.

 

Funding of $100,000 for the grant to the Foundation in 2019-20 came from the Quality Outcomes sub-program under Program 1.5: Early Learning and Schools Support, which is part of Outcome 1. Program details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at page 45.

 

Quality Outcomes is a discretionary funding program for initiatives of importance to the Australian Government. The Minister for Education and Youth approves funding allocations under Quality Outcomes.

 

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the

purpose of the item references the following powers of the Constitution:

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

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

 

Social welfare power

 

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits including benefits to students.

 

The Powell Legacy Fund will benefit persons by giving them access to further training and education to further their skills and improve their learning outcomes. The persons receiving the benefit will need to undertake a relevant course of study or recognised training program.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's international obligations under treaties to which it is a party.

 

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

 

Article 6(1) of the ICESCR recognises the right to work, and Article 6(2) requires the States Parties to take steps to achieve the full realisation of that right, including 'technical and vocational guidance and training programmes'.

 

The Powell Legacy Fund supports the right to work by helping individuals to pursue their chosen career, and to develop the skills needed to do so.

 

Article 13(2) of the ICESCR recognises the right to education. Article 13(2) requires that the States Parties take steps to achieve the full realisation of the right to education, including making 'higher education ... equally accessible to all, on the basis of capacity, by every appropriate means ... '.

 

The Powell Legacy Fund will improve access to education and training by providing scholarships for individuals to pursue education and training.

 

Australia also has obligations under the International Labour Organization's Convention concerning Employment Policy [1970] ATS 17 (ILO Convention 122), particularly Articles 1 and 2, which are about promoting full, productive and freely chosen employment.

 

In particular, Article 1.2(c) creates an obligation to implement 'an active policy' that 'aims at ensuring that ... there is a freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin'.

 

Article 2 of the ILO Convention 122 requires Members to 'decide upon and keep under

review ... the measures to be adopted for attaining the objectives specified in Article 1' and 'take such steps as may be needed, including where appropriate the establishment of programmes, for the application of these measures', by such methods and to such extent as may be appropriate under national conditions.

 

The Powell Legacy Fund will promote full, productive and freely chosen employment by supporting individuals to pursue their chosen career through financial scholarships.

 

Australia also has obligations related to vocational guidance and training under Articles 1, 2 and 4 of the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources [1986] ATS 2 (ILO Convention 142).

 

Article 1.1 of the ILO Convention 142 provides that '[e]ach Member shall adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment, in particular through public employment services.'

 

Article 2 of the ILO Convention 142 refers to the establishment and development of 'open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training, whether these activities take place within the system of formal education or outside it'.

 

Article 4 of the ILO Convention 142 provides that '[e]ach Member shall gradually extend, adapt and harmonise its vocational training systems to meet the needs for vocational training throughout life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility.'

 

The Powell Legacy Fund will improve access to education and training, relevant to implementing Articles 1, 2 and 4 of the ILO Convention 142.

 

Item 2 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities that will be administered by the department.

 

New table item 490 establishes legislative authority for government spending on the Innovation Fund for Online and Offshore Education Services (the Innovation Fund).

 

The Innovation Fund will provide targeted financial support in the form of one-off grants of up to $150,000 to approximately 60 private providers of English Language Intensive Course for Overseas Students (ELICOS) programs and higher education programs to international students.

 

The Innovation Fund forms part of the Government's $53 million targeted support for international education providers most affected by COVID-19 border closures, which was announced by the Minister for Education and Youth, the Hon Alan Tudge MP, and the Minister for Employment, Workforce, Skills, Small and Family Business, the Hon Stuart Robert MP, on 30 April 2021. The media release is available at

https://ministers.dese.gov.au/tudge/more-support-international-education-providers.

 

Up to $9 million in grant funding will be targeted at private ELICOS and higher education providers that are most affected by Australia's border closures. International student numbers experienced a substantial decline in 2020. Small and medium private providers are almost entirely reliant on the arrival of international students and are at risk of closure due to reduced student enrolments and the ongoing closure of borders to new international students.

 

The sustainability of the private international education sector, and in particular the private ELICOS sector, is important for the broader international education sector, as 67 per cent of ELICOS students go on to pursue further study in higher education and vocational education and training (VET) programs. In 2019-20, the ELICOS sector was worth over $1.4 billion in export revenue, which does not factor in the significant economic benefits flowing into the VET and higher education sectors.

 

In 2019, international education supported 250,000 jobs in the Australian economy, with one Australian job created for every three international students. With 30 per cent of international students currently outside Australia, employment will be negatively affected, and this ratio will be reduced. There is no ELICOS market for domestic students and shifting to other forms of education provision would result in a complete shift with respect to their business model, staffing and facilities, requiring significant time and capital.

 

The Innovation Fund will provide grants to enable private ELICOS and higher education providers to invest in online and offshore delivery, to grow into new market thus ensuring the ongoing viability of these providers. This will assist providers to provide courses through online learning to overseas students who are unable to arrive in Australia under current travel restrictions due to the COVID-19 pandemic. This support will also help affected providers beyond the end of the JobKeeper payment to adapt their traditional face-to-face delivery to an online model.

 

Successful grant applicants will be able to spend their grant funding on activities that align with the objectives of the Innovation Fund, including but not limited to:

*         developing new education products and online programs;

*         engaging professional consultancy services;

*         creating new business plans and models; and

*         promoting new market opportunities.

 

The Innovation Fund grantees will not be able to spend their grant funding on ordinary administration costs such as rent, purchase of land, repayment of debt, purchase of vehicles, covering of retrospective costs, major construction/capital works or payment of ongoing or permanently engaged staff salaries.

 

Eligible providers will be invited to apply for the Innovation Fund grant through a demand driven selection process. The eligibility requirements and selection criteria that applicants need to address will be developed by the department and set out in the Innovation Fund grant opportunity guidelines, which will be published on the GrantConnect website at www.grants.gov.au and the departmental website at www.dese.gov.au. Eligibility requirements will aim to ensure that applicants demonstrate the ability to pivot to international education delivery models.

 

Among the eligibility requirements will be that education providers must be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the Education Services for Overseas Students Act 2000, and that they were delivering courses on 19 March 2020 when Australia's international borders closed. These providers must also have received the majority of their revenue (greater than 50 per cent) in 2019 from international student enrolments, and experienced a total revenue decline by more than 30 per cent between 2019 and 2020. Providers that have a subsidiary relationship with a Table A or Table B provider listed under the Higher Education Support Act 2003, as well as those that have a subsidiary relationship with TAFEs or registered as a school, will not be eligible to receive grants through the Innovation Fund. Applicants will need to demonstrate that their use of the grant funds would support new delivery models for their products or support the development of new markets over the 12-month grant period.

 

The Innovation Fund will be administered by a program administrator, which will assess the eligibility of applicants against the guidelines and determine the list of applicants that will receive funding. This organisation will be selected through a one-off grant process to quickly deliver funds to eligible providers. Up to $400,000 will be provided to the program administrator as a contribution towards administration of the Innovation Fund. Any unspent funds from the administration funding will be redirected to additional grants to eligible private higher education and ELICOS providers.

 

As the program administrator will be engaged through a grant, the selection process will comply with the CGRGs, including in relation to publishing information about the opportunity and outcome of the selection process. The final decision maker in relation to expenditure to engage the program administrator will be a delegate of the Secretary of the department.

 

The grants to private providers will be administered in accordance with the CGRGs. The program administrator will make decisions about the allocation of funding to successful recipients, approval of the grant, grant funding amount, and the terms and conditions of the grant. The program administrator will not approve funding unless it is reasonably considered that the grant will support the objectives of the Innovation Fund, in accordance with the grant opportunity guidelines. Grants awarded will be reported on GrantConnect and may also be published on the departmental website.

 

Decisions made in connection with providing funding to a select industry peak organisation as the program administrator of the Innovation Fund are not considered suitable for independent merits review as this is a one-off payment to a certain service provider.

 

Decisions to provide grants to providers will also not be subject to independent merits review as the decisions relate to the allocation of a finite resource, and overturning a decision to allocate funding to one provider would affect an allocation that has already been made to another provider. The grants are also one-off payments, and not all applicants will receive the maximum grant amount as the total funding amount available for allocation is capped. Merits review would only promote competition among providers, and as such, no effective remedy could be provided, as a successful application for review by one provider would require a reduction in funding to other providers. Merits review would also, therefore, cause delays in channelling funds into service provision.

 

The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The department has consulted with key industry peak bodies, including English Australia, the Independent Tertiary Education Council of Australia and Independent Higher Education Australia. English Australia represents most of the ELICOS providers in Australia, the Independent Tertiary Education Council of Australia represents both private higher education providers and private VET providers, and Independent Higher Education Australia also represents private higher education providers. The key industry peak bodies were supportive of the initiative.

 

Funding of $9.4 million in 2021-22 for the Innovation Fund was included in the 2021-22 Budget under the measure 'Higher Education - additional support for tertiary and international education providers'. Details are set out in Budget 2021-22, Budget Measures, Budget Paper No. 2 2021-22 at pages 7 to 8.

 

Funding for this item will come from Program 2.7: International Education Support, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at pages 26 and 49.

 

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

*         the trade and commerce power (section 51(i)); and

*         the communications power (section 51(v)).

 

Trade and commerce power

 

Section 51(i) of the Constitution empowers the Parliament to make laws with respect to 'trade and commerce with other countries, and among the states'.

 

The program will provide funding for grants to providers to develop their courses for offshore delivery to overseas students.

 

Communications power

 

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

 

The grants would allow providers to deliver courses to overseas students online.

 

New table item 491 establishes legislative authority for government spending on a new child care services website to provide information about child care services, including information about child care providers and the services that they offer.

 

Funding will be provided for the development, establishment and maintenance of a child care services website that will assist families by publishing the fees, vacancies and operating hours of child care services, and offering a service-by-service comparison of Child Care Subsidy (CCS) providers. The early childhood and child care sector touches the lives of most Australian families, with almost every child now participating in some form of child care before entering school, or afterwards through out of school hours care.

 

The website will also provide an opportunity to reduce the administrative burden on CCS providers who are obligated under the Family Assistance Law to maintain current information about fees, vacancies and operating hours. The Family Assistance Law is the basis for Commonwealth child care fee assistance, which also provides for the approval of child care providers to administer child care fee assistance on behalf of families.

 

The sector is administered under a dual regulatory system. State and territory governments are responsible for regulating the operation of child care services, while the Commonwealth is responsible for regulating the provision of CCS for families. CCS is paid directly to providers to pass on to families as a fee reduction, reducing complexity for both families and providers. Child care services wishing to provide care and receive CCS must be approved under both Commonwealth and state or territory law. The Commonwealth is focussed on business viability and suitability to administer CCS on behalf of families, while state and territory regulatory authorities focus on meeting standards for the safety, health and wellbeing of children and improved educational outcomes and development for children.

 

The objective of the child care services website is to improve competition amongst child care providers and put downward pressure on child care fees. It will also deliver ancillary benefits by providing an additional free marketing opportunity for high quality child care providers with competitive prices. Additionally, it will enhance transparency by supporting families to make better decisions about child care options and costs, empowering them to access current information and supporting them to access the care they need to lift their workforce participation.

 

The child care services website will bring together and enhance the functionality of two existing separate websites: the Government's Child Care Finder (CCF) website hosted by Services Australia and the Australian Children's Education and Care Quality Authority's (ACECQA) Starting Blocks website.

 

ACECQA is an independent national authority that assists governments in administering the National Quality Framework (NQF) for children's education and care. It is a statutory authority established under Part 11 of the Education and Care Services National Law (the National Law). The NQF operates under an applied law system, comprising the National Law and the Education and Care Services National Regulations. The purpose of the applied law system is to set a national standard for children's education and care across Australia. In effect, it means the same law is applied in each state and territory, but with some varied provisions as applicable to the needs of each state or territory. Further information about the NQF is available at www.acecqa.gov.au/nqf/about.

 

ACECQA works with the Commonwealth and state and territory governments to:

*         implement changes that benefit children from birth to 13 years of age and their families;

*         monitor and promote the consistent application of the National Law across all states and territories; and

*         support the children's education and care sector to improve quality outcomes for children.

 

While both the CCF and Starting Blocks websites aim to provide families with access to up-to-date information about available approved child care and its affordability, neither website provides functionality for service-by-service comparison, resulting in families needing to access both websites to find child care options that best suit their needs. Families would benefit by being better supported to make decisions about the best care options for their needs, saving time and money by having easy access to price, quality and safety information.

 

The child care services website will utilise appropriate outsourcing arrangements to bring the two existing websites together, reducing the administrative burden on providers to keep their information current. The build will use the Government's existing technology investment in the CCF website and draw from accessible and intuitive design features of the Starting Blocks website. The project will also seek to leverage Services Australia's and ACECQA's existing back-end systems to join up existing data sources with the new website interface.

 

It is a condition of approval as a CCS provider to report fees, vacancies and operating hours on the CCF website. The ongoing administrative burden for providers will be reduced through a single, simpler interface for reporting to the Commonwealth and state and territory regulators. Currently, providers face regulatory action where they fail to keep information current, and reminders and prompts will support providers to ensure they remain compliant with their reporting obligations.

 

Table item 491 may also authorise certain activities of Services Australia relating to the child care services website, for example:

*         undertaking an analysis of how fees are reported by providers for the purposes of publication on the CCF website; based on findings, recommending and implementing improved reporting capability for providers to report their fees, with an emphasis on streamlined and compliant reporting;

*         implementing any required automatic notifications to providers to remind them of their obligations to report fees, ensuring fees are up-to-date and available from any website reported;

*         developing enhanced website interfaces with the website provider for all approved child care service data that is currently displayed on the CCF website for publication on the Starting Blocks website, including up-to-date service fees and vacancy data; and

*         in synchronisation with the new website, decommissioning the CCF website.

 

Developing a new website also has the potential to increase the flow of information about approved services between state and territory regulatory authorities and the Commonwealth, and create new opportunities to re-use provider information across the dual regulatory system. 

 

A phased approach will be used for the development and implementation of the website. It is expected that a fully functional website will be delivered by 1 July 2022, with additional features incorporated up until 30 June 2025.

 

The department will conduct a procurement process to select a provider to deliver the website. Final decisions in relation to any relevant expenditure will be made by a delegate of the Secretary of the department. These decisions will be made in accordance with the department's Accountable Authority Instructions and delegations on expenditure of relevant money, and in accordance with the Commonwealth resource management framework including the PGPA Act and the Commonwealth Procurement Rules. Information about the procurement opportunity and the contract awarded will be published on AusTender at www.tenders.gov.au.

 

Decisions to provide funding to providers will not be subject to independent merits review as the decisions relate to the allocation of a finite resource, and overturning a decision to allocate funding to one provider would affect an allocation that has already been made to another provider. The review would only promote competition among providers and no effective remedy could be provided as a successful application for review by one provider would require a reduction in funding to other providers, and there would be delays in channelling funds into service provision.

 

The process of selecting a provider to deliver the service will be a 'covered procurement' for the purpose of section 5 of the Government Procurement (Judicial Review) Act 2018. As a result, the procurement would be subject to independent review under that Act.

 

The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The department has consulted with ACECQA and Services Australia as the key project stakeholders. Both organisations understand the policy intent and are supportive.

 

The department also regularly convenes meetings of the Early Childhood and Child Care Reference Group, which includes external stakeholders from the sector. It has representatives of large providers, peak bodies and third party software providers. Future consultation is planned with the Reference Group to seek feedback regarding the single website.

 

Funding of $9.2 million for the child care services website was included in the 2021-22 Budget under the measure 'Commonwealth's Deregulation Agenda' for a period of four years from 2021-22 (and $0.6 million per year ongoing). This amount includes $4.9 million allocated to the department and $4.3 million allocated to Services Australia. Details are set out in Budget 2021-22, Budget Measures, Budget Paper No. 2 2021-22 at pages 67 to 69.

 

Funding for this item for the department will come from Program 1.1: Support for the Child Care System and Program 1.2: Child Care Subsidy, which are part of Outcome 1. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at pages 25, 30 and 31.

 

Funding for this item for Services Australia will come from Program 1.1: Services to the Community - Social Security and Welfare, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.12, Social Services Portfolio at pages 226 and 239.

 

 

 

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

 

Communications power

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

 

The child care services website will allow families to access information via the internet about approved child care providers.

 

Statement of Compatibility with Human Rights

 

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

 

Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 2) Regulations 2021

 

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 2) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Education, Skills and Employment.

 

This legislative instrument:

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

*         adds table item 490 in Part 4 of Schedule 1AB for the Innovation Fund for Online and Offshore Education Services; and

*         adds table item 491 in Part 4 of Schedule 1AB for the child care services website.

 

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

 

The amended table item 41 establishes legislative authority to expand the purpose of a grant to DemoDAIRY Foundation Limited (the Foundation) to fund the Powell Legacy Fund to provide scholarships to eligible persons to further their education, whereas such scholarships were previously limited to eligible school students.

 

The Government has provided a one-off grant of $100,000 to the Foundation in 2019-20 to provide school students from the Corangamite Shire, or with an affiliation with the Port Campbell or Timboon communities, with scholarships from the Powell Legacy Fund. These scholarships support school students to undertake courses of study offered by a recognised and qualified education provider that result in a recognised accreditation or qualification (such as undergraduate, postgraduate or TAFE studies) or work experience or work integrated learning.

 

The amended table item 41 will enable the Powell Legacy Fund to be expanded to support a broader range of eligible persons, not limited to school students, to further their skills and improve their learning outcomes to be able to contribute to their regional communities. This expansion will be achieved through a variation to the existing grant agreement with the Foundation.

 

Human rights implications

 

The amended table item 41 engages the following rights:

*         the right to work - Article 6 of the International Covenant for Economic, Social and Cultural Rights (ICESCR), read with Article 2; and

*         the right to education - Article 13 of the ICESCR.

 

Right to work

 

Article 2 of the ICESCR requires the States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Article 6(1) of the ICESCR recognises 'the right of everyone to the opportunity to gain his living by work' and that the States Parties 'will take appropriate steps to safeguard this right'.

Article 6(2) provides that the steps to be taken by a State Party to the ICESCR 'to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual'.

 

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

 

Right to education

 

Article 13(1) of the ICESCR recognises 'the right of everyone to education'. Article 13(2) requires the States Parties to take steps to achieve the full realisation of that right, including making 'higher education ... equally accessible to all, on the basis of capacity, by every appropriate means ... '.

 

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

 

Conclusion

 

The amended table item 41 is compatible with human rights because it promotes the protection of human rights.

 

Table item 490 - Innovation Fund for Online and Offshore Education Services

 

Table item 490 establishes legislative authority for government spending on the Innovation Fund for Online and Offshore Education Services (the Innovation Fund).

 

The Innovation Fund will provide targeted financial support in the form of one-off grants of up to $150,000 to approximately 60 private providers of English Language Intensive Course for Overseas Students (ELICOS) programs and higher education programs to international students.

 

Up to $9 million in grant funding will be targeted at private ELICOS and higher education providers that are most affected by Australia's border closures. International student numbers experienced a substantial decline in 2020. Small and medium private providers are almost entirely reliant on the arrival of international students and are at risk of closure due to reduced student enrolments and the ongoing closure of borders to new international students.

 

The Innovation Fund will provide grants to enable private ELICOS and higher education providers to invest in online and offshore delivery, to grow into new market thus ensuring the ongoing viability of these providers. This will assist providers to provide courses through online learning to overseas students who are unable to arrive in Australia under current travel restrictions due to the COVID-19 pandemic. This support will also help affected providers beyond the end of the JobKeeper payment to adapt their traditional face-to-face delivery to an online model.

 

The Government recognises the increasing need for individuals to access tertiary education to upskill and reskill throughout their life, to meet the evolving demands of the international labour market. Supporting the continued sustainability of private providers and their continued delivery of courses will ensure that overseas students are able to return to Australia once borders reopen and obtain the English language qualifications they require to study at Australian institutions. This will allow these students to complete their studies successfully, gather knowledge and skills which they will transfer into employment to build their socioeconomic status.

 

Human rights implications

 

Table item 490 engages the following rights:

*         the right to education - Article 13 of the ICESCR, read with Article 2; and

*         the recognition of benefits of scientific and cultural cooperation - Article 15(4) of the ICESCR.

 

Right to education

 

Article 2 of the ICESCR requires the States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Under Article 13(1) of the ICESCR, the States Parties 'recognize the right of everyone to education' and 'agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms ... education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.' Article 13(2)(c) states that '[h]igher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means...'

 

Table item 490 will support the right of overseas students to access further education by ensuring that students are able to undertake courses and obtain valuable skills and qualifications through education providers. These skills will enable many of them to undertake study at Australian institutions when borders reopen and will assist them to participate in society, an increasingly international labour market and promote understanding and friendship across nations.

 

Recognition of benefits of scientific and cultural cooperation

 

Under Article 15(4) of the ICESCR, the States Parties 'recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.'

 

By supporting private international education providers to continue to provide courses to overseas students to obtain English language skills and qualifications and go on to undertake further study at Australian institutions, table item 490 will support development of international contacts and co-operation in scientific and cultural fields.

 

Conclusion

 

Table item 490 is compatible with human rights as it promotes the protection of human rights.

 

Table item 491 - Child care services website

 

Table item 491 establishes legislative authority for government spending on a new child care services website to provide information about child care services, including information about child care providers and the services that they offer.

 

Funding will be provided for the development, establishment, and maintenance of a child care services website that will assist families by publishing the fees, vacancies and operating hours of child care services, and offering a service-by-service comparison of Child Care Subsidy (CCS) providers. It will also provide an opportunity to reduce the administrative burden on CCS providers who are obligated under the Family Assistance Law to maintain current information.

 

The child care services website will bring together and enhance the functionality of two existing separate websites: the Australian Government's Child Care Finder website and the Australian Children's Education and Care Quality Authority's Starting Blocks website. It is expected that a fully functional website will be delivered by 1 July 2022, with additional features incorporated up until 30 June 2025.

 

Human rights implications

 

Table item 491 engages the following rights:

*         the best interests of the child - Article 3 of the Convention on the Rights of the Child (CRC), read with Article 2; and

*         the right of the child to protection - Article 24 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2.

 

Article 2 of the CRC states that each State Party to the Convention will respect and ensure the rights and freedoms recognised in the Convention and take all appropriate measures to ensure that the child is protected.

 

Article 3 of the CRC states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

 

Article 2 of the ICCPR states that each State Party to the Covenant will respect and ensure the rights and freedoms recognised in the Covenant and take the necessary steps to make remedies if the rights are violated.

 

Article 24(1) of the ICCPR states that every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

 

Early childhood education and child care play a vital role in the development of Australian children and the rights of the child listed above are fundamentally engaged in facilitating access and information to child care that is subsidised by the Commonwealth. Moreover, children's preparation for school and access to this care is one of the more effective early intervention strategies to break the cycle of poverty.

 

Table item 491 promotes the rights of the child by supporting the development, establishment and maintenance of a child care services website that will provide information to families about child care providers and the services that they offer. This information will assist families to make informed decisions about accessing child care at a reasonable cost and the choices available.

 

Conclusion

 

Table item 491 is compatible with human rights as it promotes the protection of human rights.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance