Bills Digest no. 51 2015–16
PDF version [586KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
James Griffiths
Social Policy Section
19 November 2015
This Bills Digest should be read in conjunction with
the Bills
Digest for the Higher
Education and Research Reform Amendment Bill 2014 and the Bills
Digest for the Higher
Education and Research Reform Bill 2014.
History
of the Bill
Structure of the Bills Digest
Purpose of the Bill
Structure of the Bill
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 22
October 2015
House: House of
Representatives
Portfolio: Education
and Training
Commencement: Sections
1 to 3 commence on Royal Assent. Schedule 1 commences on 1 July 2016. Schedules
2 to 6 commence on the day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The Government announced a series of
higher education reforms in the 2014–15 Budget.[1]
These reforms were presented to Parliament twice, in the form of the Higher
Education and Research Reform Amendment Bill 2014 and the Higher Education and
Research Reform Bill 2014 (‘the previous Bills’).[2]
Both of these Bills were not proceeded with after being negatived in the Senate.
Within the broader reform legislation, there were also a
variety of technical or relatively non-contentious changes. This Bill
reintroduces these measures in addition to other relatively technical measures
to amend higher education and research legislation.
Provisions in Schedules 1, 3 and 6 reflect similar
provisions in the previous Bills. Background and analysis of these measures
were set out in the relevant Bills Digest.[3]
As analysis and background on these provisions has already been provided, this
Bills Digest will focus on any commentary on these provisions since the Bills
were not proceeded with, as well as provisions in Schedules 2, 4 and 5.
The purpose of the Higher Education Legislation Amendment
(Miscellaneous Measures) Bill 2015 is to amend the Higher Education Support
Act 2003 (HESA), the Tertiary Education Quality and Standards Agency
Act 2011 (the TEQSA Act), and the Australian Research Council Act
2001 (the ARC Act) to give authority to a number of measures
emerging out of the 2014–15 Budget and subsequent technical amendments.[4]
These measures include:
- allowing
certain New Zealand citizens access to Higher Education Loan Programme (HELP)
loans
- recognising
the establishment of Torrens University Australia as a private university
operating in Australia
- reflecting
the creation of Federation University Australia through the merger of the
University of Ballarat and the Gippsland campus of Monash University
- confirming
the Constitutional basis for other grants to higher education institutions
under HESA
- reducing
the administrative requirements placed on the Tertiary Education Quality and Standards
Agency (TEQSA) and the Australian Research Council (ARC) and
- increasing
the funding caps for the ARC.
The Bill contains six schedules. Where these are similar
to provisions in the previous Bills, this has been indicated below.
|
Schedule
|
Status
|
|
Schedule 1 amends HESA to allow certain New
Zealand students access to HELP Loans
|
Revised from previous Bills, provisions almost identical
with some minor drafting changes for clarity[5]
|
|
Schedule 2 amends HESA to recognise the
establishment of Torrens University Australia
|
New
|
|
Schedule 3 amends HESA to take into account
the creation of Federation University Australia
|
Retained from previous Bills[6]
|
|
Schedule 4 provides further Constitutional basis
for the Other Grants in HESA
|
New
|
|
Schedule 5 removes the requirement for TEQSA to
produce an annual operational plan
|
New
|
|
Schedule 6 reduces reporting requirements on the
ARC and increases the legislated funding caps
|
Revised from previous Bills[7]
|
The Bill has not been referred to any Committee for
consideration.
Senate Standing Committee for the
Scrutiny of Bills
This Committee had no comment on the Bill.[8]
The Australian Labor Party, Australian Greens and other
non-government parties and independents do not appear to have formally released
any comment on this specific legislation.
However, on 2 September 2014 the Labor Opposition Shadow
Minister for Higher Education, Research, Innovation and Industry, Senator Kim
Carr encouraged the government to separate out non-controversial measures from
its 2014–15 Budget higher education packages in further legislation that the
ALP could support.[9]
These ‘non-controversial’ measures included extending HELP assistance to
certain New Zealand citizens resident in Australia, updating the ARC funding
caps, and recognising the establishment of Federation University Australia.
This may imply bipartisan support for at least those aspects of the current
Bill.
As part of their current policy platform, the Australian
Greens prioritise the ‘public good’ of education and focus on the place of
public institutions in providing it. Principle 15 of their Education platform
document states that:
Universities are places of learning and research where the
needs of the whole community and the values of service to the public,
scholarship and academic freedom should take priority over sectional and
commercial interests.[10]
This suggests the Australian Greens may not support the
expansion of grant funding under HESA to particular private institutions.
The major interest groups in higher education have not yet
released any statements in relation to this legislation that could be found.
The Explanatory Memorandum states that the measure to
extend access to HELP loans to certain New Zealand students is estimated to
lead to additional costs of $12.3 million from 2015–16 to 2018–19, in fiscal
balance terms, and that the amendments to ARC funding legislation will allow
for additional spending of up to $1,538.9 million from 2015–16 to 2018–19.[11]
Special appropriations
The ARC Act contains a special appropriation which
grants the Council the ability to spend up to the legislated amount (known as a
‘funding cap’) for a given financial year on its grant programs.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[12]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not give rise to human rights concerns.[13]
As mentioned above, the Bill has three Schedules which are
largely similar to provisions previously placed before the Parliament
(Schedules 1, 3 and 6), and three Schedules which are entirely new (Schedules
2, 4 and 5). Due to the largely technical nature of these provisions, substantive
issues only arise in relation to the funding changes proposed in Schedule 6.
Schedule 1—New Zealand Citizens
Since the Government’s decision to not proceed with the
previous Bills, the Opposition Shadow Minister for Higher Education, Research,
Innovation and Industry, Senator Kim Carr introduced the Higher Education
Support Amendment (New Zealand Citizens) Bill 2015 to the Senate on 24 June
2015.[14]
This would have extended HELP loans to certain categories
of New Zealanders resident in Australia. The provisions were almost identical
to those in Schedule 10 of both previous Bills. Second reading of this private
member’s Bill was moved on 24 June 2015 and it was debated further on 17
September 2015.
The provisions in the current Government Bill reflect some
minor changes from the previous Bill, presumably for clarity, and allow the Government
to implement its 2014–15 Budget measure.
It should be noted this policy change was first proposed by
the then Labor Government in June 2013, but was not legislated prior to the
2013 election.[15]
Schedule 2—Torrens University
Australia
This Schedule adds a new higher education provider to HESA.
This would include Torrens University Australia under Table B of the Act, which
lists private Australian universities. The mechanisms of funding under HESA
allow for higher education institutions to be listed under a Table of the Act,
which identifies them as eligible for certain grants.[16]
Torrens University Australia is currently registered with
the appropriate regulator, TEQSA.[17]
Should this amending Bill be passed, Torrens University Australia will be able
to receive research funding under Part 2-3 and Part 2-4 of HESA.
Schedule 3—University name change
As with proposed Schedule 2, this Schedule contains a
technical amendment reflecting the change of name of the University of Ballarat
to Federation University Australia (FedUni). FedUni was created through the
amalgamation of the University of Ballarat and the Monash University Gippsland
Campus in 2014.[18]
HESA includes public universities as listed providers
under Table A of the Act and thereby identifies them as eligible for certain
grants. The name change would reflect the updated nature of FedUni and ensure
there is no legal question over its current funding eligibility.
Schedule 4—Constitutional bases for
other grants
According to the Bill’s Explanatory Memorandum, this
Schedule ‘confirms the relevant heads of constitutional power that Part 2-3 of HESA
relies upon’ to ensure there is sound basis for the Other Grants made under HESA.[19]
These Other Grants include:
- grants
to support equality of opportunity in higher education
- grants
to support the capital development projects of higher education providers
- grants
to support research by, and the research capability of higher education providers
and
- grants
to support the development of systemic infrastructure used by higher education
providers.
The Other Grants under HESA are governed by a
series of Guidelines and have been operating in various forms since the
introduction of HESA in 2003.[20]
Neither the Explanatory Memorandum to this Bill, nor the Second Reading Speech,
clarify why these Other Grants need additional Constitutional authority. As
such, the inclusion of proposed section 41-95 appears to be a reaction
to the High Court decisions in Pape, Williams (No. 1) and Williams
(No. 2) (the Williams decisions).[21]
In simple terms, the High Court has held that even if the
Commonwealth has a valid constitutional basis for spending money, specific
legislative authorisation beyond an appropriation Act is usually required
before it can do so.
Until the High Court’s 2009 decision in Pape, the
prevailing view was that the Commonwealth had the power to appropriate monies
to a purpose or matter irrespective of whether or not the Commonwealth had any
legislative power in relation to that purpose or matter. This purported
‘spending power’ was inferred from sections 81 and 83 of the Constitution,
which deal with appropriations.
However, in Pape the High Court ruled that sections
81 and 83 of the Constitution do not of themselves provide the Executive
Branch of the Commonwealth Government with a substantive spending power.[22]
Instead, the Commonwealth has to show some legal basis, beyond the mere passing
of an Appropriation Act, for expenditure to be lawful. Put simply,
spending can only usually be authorised by legislation that falls within a
subject matter head of power under section 51 of the Constitution or by
the ‘nationhood power’.[23]
In Williams (No. 1) the High Court again held that
the Executive Branch of the Commonwealth Government cannot (generally) spend
money unless it is supported by constitutionally valid, legislatively provided
power. Hayne J noted pointedly that the proposition that just ‘because certain
expenditure could be authorised by statute, it can be undertaken by the
Executive’ was false.[24]
Put simply, even if the Constitution provides a head of power that could
support legislation that could then authorise certain expenditure, this does not
mean the Government can spend money prior to such legislation being
passed. The Commonwealth Parliament passed what it perceived as remedial
legislation to counteract the Williams (No. 1) decision.[25]
The validity of that legislation was the focus of Williams (No. 2).
In Williams (No. 2) the High Court held that the
remedial legislation was also not authorised under the incidental power
(section 51(xxxix) of the Constitution) because it would allow any
appropriations made under sections 81 and 83 of the Constitution to be
spent as the Executive branch of the Commonwealth Government saw fit, against
the authority of Pape. Put simply, once again the High Court held that
all expenditures must be authorised by legislation supported by a relevant
constitutional power—it is not simply enough to pass an Appropriation Act.
The inclusion of proposed section 41-95 appears to be a
reaction to the Pape and Williams decisions, as it outlines the
following additional constitutional heads of power that authorise the making of
Other Grants under the HESA:
- the
corporations power (section 51(xx) of the Constitution)
- the
trade and commerce power (section 51(i) of the Constitution)
- the
postal and telegraphic power (section 51(v) of the Constitution)
- the
astronomical and meteorological observation power (section 51(viii) of the Constitution)
- the
census and statistics power (section 51(xi) of the Constitution)
- the
aliens power (section 51(xix) of the Constitution)
- the
pension power (section 51(xxiii) of the Constitution)
- the
student and sickness benefits power (section 51(xxiiiA) of the Constitution)
- the
race power (section 51(xxvi) of the Constitution)
- the
external affairs power (section 51(xxix) of the Constitution) and
- the
‘incidental’ power (section 51(xxxix) of the Constitution). [26]
Whilst the inclusion of proposed section 41-95 does not
guarantee that aspects of the Bill will not be susceptible to some form of
constitutional challenge in the future, it would appear it is aimed at ensuring
that other provisions in the Bill remain valid in the event of such a challenge
being successful, and hence any grants made under the alternative heads of
power.
Schedule 5—TEQSA operational plans
This Schedule removes the current requirement for TEQSA to
produce an annual operational plan.[27]
This requirement has been superseded since the establishment of TEQSA in 2011
by a requirement to prepare a corporate plan under the Public Governance,
Performance and Accountability Act 2013, which applies to all accountable
authorities such as the ARC.[28]
This is intended to simplify and standardise governance requirements across the
public sector.
Item 3 of the Schedule changes the date on which the
corporate plan must be provided to the Minister for approval from 31 January to
30 April each year. This is intended to allow the Commissioners time to prepare
the plan in conjunction with government policy as set out in the relevant
Portfolio Budget Statements.
Schedule 6—Research funding
This Schedule contains revised administrative arrangements
and updated funding caps for the ARC. Similar to Schedule 5, items 2 and
3 remove the current requirement for the ARC to produce a corporate
plan.[29]
The ARC operates on a rolling legislative authorisation for
its funding; the Australian Research Council Act 2001 has to be amended
regularly to allow for additional funding across the forward estimates and to
take into account indexation.
The updated funding caps in items 4 and 5 of
the Schedule allow the ARC to fund its programs through the 2018–19 financial
year. It is unclear whether these updated funding caps continue with the
efficiency dividend that was proposed by the then Labor Government in 2013.[30]
The efficiency dividend was also included in the 2014–15 Budget and was due to
take effect from 2015–16.[31]
As of the 2015–16 Budget, this remained government policy.[32]
Graph 1 below details ARC funding trends from 2010 and suggests that neither
government has consistently increased ARC funding.
Graph 1: ARC funding caps, as legislated and proposed,
2010 onwards.
Source: Section 49, Australian Research
Council Act 2001, and Schedule 6, Higher
Education Legislation Amendment (Miscellaneous Measures) Bill 2015, both accessed
1 November 2015. Funding caps refer to financial rather than calendar
years.
The amendments proposed are largely technical and non-controversial
in nature. They will ensure newly established higher education providers can
receive equitable funding support and New Zealand citizens who have been in
Australia for most of their lives can access higher education loans. The
updated funding caps in Schedule 6 reflect the ways in which government
research funding is often beset by broader budget priorities.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Australian
Government, ‘Higher
Education’, Budget 2014–15, 13 May 2014, accessed
27 October 2015.
[2]. Parliament
of Australia, ‘Higher
Education and Research Reform Amendment Bill 2014 homepage’ and ‘Higher
Education and Research Reform Bill 2014 homepage’, Australian Parliament
website, both accessed 18 November 2015.
[3]. C
Ey, Higher
Education and Research Reform Amendment Bill 2014, Bills digest, 33,
2014–15, Parliamentary Library, Canberra, 8 October 2014, accessed
27 October 2015, and J Griffiths, Higher
Education and Research Reform Bill 2014, Bills digest, 69, 2014–15,
Parliamentary Library, Canberra, 6 February 2015, accessed
30 October 2015.
[4]. Higher Education Support
Act 2003, Tertiary
Education Quality and Standards Agency Act 2011, and Australian Research
Council Act 2001, accessed 30 October 2015.
[5]. See
Schedule 10 of the Higher
Education and Research Reform Amendment Bill 2014 and Schedule 10 of the Higher
Education and Research Reform Bill 2014.
[6]. See
Schedule 9 of the Higher Education and Research Reform Amendment Bill 2014 and
Schedule 9 of the Higher Education and Research Reform Bill 2014.
[7]. See
Schedule 5, Part 1 of the Higher Education and Research Reform Amendment Bill
2014 and Schedule 5, Part 1 of the Higher Education and Research Reform Bill
2014.
[8]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 12, 2015, 11 November 2015, p. 16, accessed
18 November 2015.
[9]. K
Carr, Labor
urges separate bill for non-controversial higher ed measures, media release,
2 September 2014, accessed 30 October 2015.
[10]. Australian
Greens, ‘Principles’ – Education
Platform, Australian Greens policy document, undated, accessed
19 November 2015.
[11]. Explanatory
Memorandum, Higher Education Legislation Amendment (Miscellaneous Measures)
Bill 2015, p. 3.
[12]. The
Statement of Compatibility with Human Rights can be found at pp. 4–6 of the
Explanatory Memorandum to the Bill.
[13]. Parliamentary
Joint Committee on Human Rights, Thirtieth
report of the 44th Parliament, 10 November 2015,
p.2, accessed 18 November 2015.
[14]. Parliament
of Australia, ‘Higher
Education Support Amendment (New Zealand Citizens) Bill 2015 homepage’,
Australian Parliament website, accessed 30 October 2015.
[15]. C
Emerson (Minister for Tertiary Education), HELP
for New Zealanders who grow up here, media release, 11 June 2013,
accessed 30 October 2015.
[16]. Torrens
University would not be eligible for funding under the Commonwealth Grants
Scheme, which subsidises places for students at public higher education
providers in Australia.
[17]. See
‘Torrens
University Australia Ltd’, TEQSA website, accessed
1 November 2015.
[18]. Federation
University Australia, ‘About FedUni’,
Federation University Australia website, accessed 2 September 2014.
[19]. Explanatory
Memorandum, Higher Education Legislation Amendment (Miscellaneous Measures)
Bill 2015, p. 2.
[20]. See
Higher Education Support
Act 2003 - Other Grants Guidelines (Education) 2012 (DIISRTE), and Higher Education Support
Act 2003 - Other Grants Guidelines (Research) 2012 (DIISRTE), accessed 1
November 2015.
[21]. Pape
v Commissioner of Taxation (2009) 238 CLR 1, [2009] HCA 23;
Williams v Commonwealth of Australia (2012) 248 CLR 156, [2012] HCA 23;
and Williams v Commonwealth of Australia (2014) 252 CLR 416, [2014] HCA 23.
[22]. Constitution,
accessed 18 November 2015.
[23]. The
Commonwealth has a subject matter head of power that supports some forms of funding
for higher education. Section 51(xxiiiA) of the Constitution
provides that the Commonwealth can legislate amongst other things for ‘the
provision of ... benefits to students’. The High Court has held that such laws must
do more than provide some advantage to a student. At minimum there must be some
form of material aid such as money or the provision of a service to an
identified or identifiable student to provide for human wants which are as a
consequence of being a student: Williams v Commonwealth of Australia
(2014) 252 CLR 416, [2014] HCA 23,
paragraphs [38]–[48] (French CJ, Hayne, Kiefel, Bell and Keane JJ) (in
particular [46]), accessed 2 November 2015. Whilst this power would
support funding related to the Higher Education Loan Programme (HELP), it would
not necessarily support funding for ‘other grants’ under HESA.
In relation to the ‘nationhood power’,
the High Court has held that the power (which arises from the incidental
(section 51(xxxix) and Executive/prerogative powers (section 61) of the Constitution
along with the existence and character of the Commonwealth as a national
government) confers upon the Commonwealth the power to ‘engage in enterprises
and activities peculiarly adapted to the government of a nation and which
cannot otherwise be carried on for the benefit of the nation’: Victoria v
The Commonwealth and Hayden (1975) 134 CLR 338, [1975]
HCA 52, p. 397.
[24]. Williams
v Commonwealth of Australia (2012) 248 CLR 156, [2012] HCA 23,
as per Hayne J at [194].
[25]. Financial Framework
Legislation Amendment Act (No. 3) 2012, accessed 8 August 2015.
[26]. Constitution, accessed
3 November 2015. The inclusion of this type of provision is becoming
increasingly common. See, for example: section 333 of the Navigation Act 2012;
section 4A of the National
Land Transport Act 2014 and section 206 of the National Disability
Insurance Scheme Act 2013, all accessed 18 November 2015.
[27]. See
Subdivision B of Division 7 of Part 8, Tertiary Education
Quality and Standards Agency Act 2011, accessed
1 November 2015.
[28]. See
Public Governance,
Accountability and Performance Act 2013, section 35, accessed
1 November 2015.
[29]. Australian Research
Council Act 2001, accessed 18 November 2015.
[30]. C
Emerson (Minister for Tertiary Education, Skills, Science and Research), Statement
on higher education, media release, 13 April 2013, accessed
1 November 2015.
[31]. Australian
Government, A Sustainable Higher Education System – Australian Research Council
– Efficiency Dividend, in ‘Part 2:
expense measures’, Budget measures: budget paper no. 2 2014–15, accessed
19 November 2015.
[32]. No
changes to budget settings in relation to the ARC efficiency dividend were
announced as part of the 2014–15 MYEFO or the 2015–16 Budget. The Department of
Education and Training confirmed the ARC efficiency dividend remained government
policy in a recent Estimates hearing. See Senate Education and Employment
Legislation Committee, Proof
Committee Hansard, 21 October 2015, p. 58, accessed
19 November 2015.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.