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Higher Education (Maximum Amounts for
Other Grants) Determination 2013
for House of Representatives and Senate, 11 February 2014
Summary of committee
The committee seeks further information on the impact of the proposed
changes on the right to education and, to the extent that the instrument may
involve a limitation or a retrogressive measure, a statement of justification
for the changes.
The Higher Education Support Act 2003 provides for the payment of
'other grants' to higher education providers and other eligible bodies for a
variety of purposes.
Such purposes include, for example, the promotion of equality and opportunity
in higher education. The Act sets out the maximum total payments for 'other
grants' in respect of a year.
In relation to each of the years 2013-2016, the Act sets out an amount or
provides that, in the alternative, the Minister may determine an amount by
legislative instrument. In relation to the year 2017 and each later year, the
Act provides that the Minister must determine the amount by legislative
This instrument sets out the maximum amounts of all grants for 'other
grants' for the 2013-2017 calendar years.
Compatibility with human rights
Statement of compatibility
The statement of compatibility accompanying the instrument states that
the instrument engages the right to education.
The statement states that, given the purposes of the 'other grants' payments,
the instrument 'enables access to education and therefore will be compatible
with human rights'.
To the extent that the right to education is engaged, this
right is promoted by the Instrument as the Instrument aims to improve the
integrity of the higher education sector.
The statement concludes that the instrument is compatible with human
rights because it advances the protection of human rights.
Committee view on compatibility
Right to education
The committee agrees that, overall, the payment of 'other grants' under
the Higher Education Support Act appears to promote the right to education.
However, the committee notes that the purpose of this particular instrument is
to prescribe the maximum amounts payable in respect of a given year. The
committee also notes that the amounts specified in the instrument for the years
2013-2017 are all lesser amounts than those currently specified in the Act.
The statement of compatibility does not address why the amounts
specified in the instrument are lower than those specified in the Act. To the
extent that this instrument reduces the level of funding available, the measure
may be either a limitation on the right to education or a retrogressive
Article 4 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) provides that the rights guaranteed in the Covenant, such as
the right to education, may be limited but only by:
such limitations as are determined by law only in so far as
this may be compatible with the nature of these rights and solely for the
purpose of promoting the general welfare in a democratic society.
Our predecessor committee also noted that retrogressive measures
affecting economic, social and cultural rights have to be clearly justified:
A deliberate retrogressive measure has been described to mean
any measure which implies a backwards step in the level of protection of ICESCR
as a consequence of an intentional decision by the state and includes an
unjustified reduction in public expenditure in the absence of adequate
compensatory measures aimed to protect the affected individuals. Deliberate
retrogressive measures are not prohibited per se under international human
rights law but will require close justification, even during times of severe
resource constraints, whether caused by a process of adjustment, economic
recession, or by other factors.
If the effect of the instrument is to reduce the amount of funding
available, it is necessary for the Minister to demonstrate that the measure
pursues a legitimate objective and has a reasonable relationship of
proportionality between the means employed and the objective sought to be
The statement of compatibility does not address these matters. The
committee expects that where funding cuts are made, the statement of
compatibility should provide an assessment of the practical impact on the
relevant rights, including, where the enjoyment of such rights will be
affected, an appropriate justification.
The committee notes that relevant to this analysis will be whether such
funding has been directed elsewhere due to the identification of different
needs and priorities in the education sector. For example, the committee notes
that another recent legislative instrument appears to have the effect of
increasing the amount of funding currently specified in the Higher Education
Support Act for other types of payments under the Act.
The committee intends to write to the Minister for Education to
seek further information about:
- whether the provision of lesser amounts for certain grants
under the Higher Education Support Act than the amounts presently specified
under the Act may constitute a limitation on the right to education or a
retrogressive measure; and
- how the reduction in funding is considered to be reasonable,
necessary and proportionate to achieving a legitimate objective.
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