Details of the Financial Framework (Supplementary Powers) Amendment 

(Education Measures No. 1) Regulations 2022

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 1) Regulations 2022.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration 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 - In the appropriate position in Part 3 of Schedule 1AB (table)

 

Item 1 adds one new table item to Part 3 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the Department of Education (the department).

 

New table item 59 establishes legislative authority for the Government to provide a grant to the Australian Indigenous Education Foundation (AIEF) to deliver the AIEF Scholarship Program, which support Aboriginal and Torres Strait Islander students to access education.

 

The AIEF was established in 2008 in response to community demand from Indigenous families who choose to enrol their children in boarding schools. The AIEF works in partnership with schools, universities and residential education facilities (for example boarding providers) to support Aboriginal and Torres Strait Islander students to access quality education throughout Australia.

 

The AIEF has demonstrated success in improving educational outcomes of Aboriginal and Torres Strait Islander students, including high numbers of participants staying engaged in school and attaining a Year 12 qualification - a key target of the National Agreement on Closing the Gap. A 2020 KPMG evaluation found that when compared to average Indigenous outcomes:

*         AIEF students achieved above 90 per cent annual retention and completion rates;

*         AIEF students are 2.3 times more likely to complete Year 12; and

*         AIEF Year 12 Graduates are four times more likely to go to university.

 

While Year 12 attainment is increasing, more effort is required to reach the National Agreement on Closing the Gap target of increasing the proportion of Aboriginal and Torres Strait Islander people (age 20-24) attaining year 12 or equivalent qualification to 96 per cent.

 

In 2020, AIEF supported 386 Aboriginal and Torres Strait Islander students through scholarships to access a quality education through its two core programs, the AIEF Scholarship Program and the AIEF Pathways Program.

 

The AIEF Scholarship Program provides funding that enables Aboriginal and Torres Strait Islander students to pursue their education at leading Australian boarding schools and universities by covering tuition and boarding fees and educational expenses to ensure students enjoy the full range of opportunities at AIEF Partner Schools. AIEF scholarship amounts vary between students depending on a number of factors including ABSTUDY entitlements, level of boarding and tuition fees at the relevant AIEF Partner School, and parental contribution to school fees. This support enables students to access quality education in culturally inclusive environments, where they develop the skills and confidence to fulfil their potential.

 

The AIEF has received $141.1 million from the Australian Government since 2008 to support a cumulative total of 7,065 scholarship places. In line with existing Australian Government funding arrangements administered by the National Indigenous Australians Agency (NIAA), the AIEF will be required to match this funding 1:1 from external sources (for example through corporate and philanthropic) over the next 20 years. Given this, the scale of scholarships to be offered each year will be confirmed with the department through the funding agreement.

 

The AIEF Pathways Program complements the AIEF Scholarship Program by providing career support to ensure all AIEF scholarship students make a successful transition from school or university to further studies or employment.

 

The AIEF is currently funded through the NIAA under the Children and Schooling Program within the Indigenous Advancement Strategy. Additional grant funding of $32.6 million over three years from 2022-23 (including $0.6 million in departmental funding for the transition of the program administration across to the department) is provided to the AIEF to expand the number of supported scholarship places and extends Australian Government support until at least the end of the 2024 school year.

 

The department will provide funding to the AIEF as a closed non-competitive grant, as it has a well-established record of successfully supporting the educational outcomes of Aboriginal and Torres Strait Islander students through scholarships. The organisation will respond to grant guidelines developed in accordance with the Commonwealth Grants Rules and Guideline 2017 (CGRGs).

 

The grant expenditure decision will be made by the First Assistant Secretary of the Improving Student Outcomes Division (as the delegate of the Secretary of the department in line with the appropriate financial delegations).

 

The department will be responsible for administering grant payments to AIEF, which will be staggered over the length of the funding agreement to ensure deliverables are met.

 

Funding decisions made in relation to a grant to the AIEF will not be suitable for independent merits review as the grant will be closed, non-competitive and for a specific purpose and entity. The AIEF has been directly selected because of its proven success in improving student outcomes. In addition, the grant involves an allocation of a finite resource and overturning the decision to allocate funding to another party would affect the funding that has already been allocated to the AIEF. 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 4.19 of the guide, What decisions should be subject to merit review? (ARC's guide)).

 

The Minister for Education has met with the AIEF to hear about their program and delivery approach. The department is engaging with the NIAA to understand existing funding arrangements and support the transfer. Further consultation was not deemed necessary as the decision to extend delivery of an existing program remains in line with its current scope.

 

Grant funding to the AIEF of $32 million over two years from 2022-23 will come from Program 1.5: Early Learning and Schools Support, which is part of Outcome 1. Details are set out in the October 2022-23 Budget and the Portfolio Budget Statements, Education portfolio.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the race power (section 51(xxvi)) of the Constitution.

 

Race power

 

Section 51(xxvi) of the Constitution empowers the Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'.

 

The funding will enable the AIEF to continue its work in enabling Aboriginal and Torres Strait Islander students to access quality education throughout Australia, including via boarding school, by providing scholarships and support.

 

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

 

Item 2 adds one new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the department.

 

New table item 558 establishes legislative authority for government spending on the Promoting quality in the existing teacher workforce (the program), which aims to develop and deliver courses and programs that support the professional development of teachers.

 

The program responds to the Quality Initial Teacher Education (QITE) Review, released on 24 February 2022 (www.dese.gov.au/quality-initial-teacher-education-review), which found that investing in the quality of the existing teacher workforce is required to maintain a
high-quality of teaching. In addition, it also found that many early career teachers feel
under-prepared from their initial teacher education (ITE) courses in teaching phonics and dealing with classroom disruption.

 

The previous Government launched the QITE Review on 15 April 2021, with a focus on attracting and selecting high-quality candidates into the teaching profession and preparing ITE students to be effective teachers. Leading the Review were an Expert Panel comprising Ms Lisa Paul AO PSM (Chair); Mr Malcolm Elliott, President of the Australian Primary Principals Association; Emeritus Professor Bill Louden AM, former Deputy Vice Chancellor and Dean of Education at the University of WA; and Mr Derek Scott, Principal of Haileybury School and 2019 Australian School Principal of the Year.

 

The program responds to concerns identified through the QITE Review through the
two-measures: Quality Teaching Rounds and Micro-credential Courses, which aligns with the Government's longstanding commitment to quality teaching. These professional learning measures will support the existing teaching workforce by providing access to low or no cost professional learning and help ensure Australian students have access to quality teachers who use evidence-based practise to support improved outcomes.

 

Quality Teaching Rounds

 

The Government will fund $5.0 million over four years from 2022-23 to Quality Teaching Academy (QTA) at the University of Newcastle to expand the Quality Teaching Rounds (QTR) Program. This measure will be announced as part of the Australian Government's response to the QITE Review.

 

This measure will support the existing teacher workforce with the provision of high quality, evidence based professional learning, in the form of the QTR developed and delivered by the QTA.

 

The QTR is an evidence-based approach to teacher professional development, developed over two decades ago. It enables teachers to improve their teaching practice and that of their colleagues through the establishment of collaborative learning communities based on a shared understanding of a comprehensive pedagogical framework, the Quality Teaching Model (model). The model was developed by Laureate Professor Jenny Gore and Associate Professor James Ladwig, and commissioned by the New South Wales Department of Education. It provides teachers with a shared understanding of key elements of practice for which there is evidence of impact on student outcomes.

 

The QTA is an initiative of the Teachers and Teaching Research Centre at the University of Newcastle in partnership with the Paul Ramsay Foundation. The QTA provides teachers and principals support services, resources and networks to implement and evaluate QTR professional development in their schools.

 

The objective of the expenditure is to have additional teachers across Australia learning about and embedding QTR in Australian schools, to improve the reflective practices and quality of the workforce.

 

Nominated teachers will be supported to participate in a two-day, online professional learning workshop run by the QTA. The intended impacts of the learning are ongoing, as teachers trained in QTR will then be supported to return to their schools to engage in Professional Learning Communities (PLCs) with other teachers. These PLCs conduct regular 'rounds' where they observe, analyse, and discuss each other's lessons, guided by the model.

Funding will be provided via a non-competitive grant to the QTA to deliver professional learning on the model to at least an additional 1,600 teachers. The target group to be supported by this measure are the existing teacher workforce.

 

As the Government will look to have the QTR course delivered flexibly and remotely, with teachers from all states and territories and school settings will be eligible to undertake the two-day workshop, this may increase the number of teachers across Australia that are able to be supported. The Government will work with interested states and territories and non-government authorities to allocate these places within their jurisdictions.

 

Micro-credential Courses

 

This measure provides funding of $5.0 million over four years from 2022-23 to support the current teaching workforce to utilise evidenced-based professional learning to promote quality teaching and improved student outcomes.

 

The measure will achieve this by supporting the design and delivery of micro-credential professional learning courses at low or no cost for teachers, with a foundation in evidence-based practice. The micro-credential courses will be focussed in three identified areas of need: classroom management, phonics and explicit teaching.

 

The measure responds to findings from the QITE Review that:

• investing in the quality of the existing teacher workforce is required to maintain a high-quality of teaching; and
• many early career teachers feel under-prepared from their ITE courses in teaching phonics and dealing with classroom disruption.

 

The department will deliver the QTR and the Micro-credential Courses through a suite of grant and procurement processes in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013, the CGRGs, the Commonwealth Procurement Rules and the department's Accountable Authority Instructions.

 

QTR will be delivered in the form of a closed non-competitive grant. Information about the grant opportunity and the grant process outcome will be made available on the GrantConnect website (www.grants.gov.au), and the grant will be administered by the Community Grants Hub, which is part of the Department of Social Services.

 

A delegate of the Secretary of the department under the FF(SP) Act will be responsible for approving funding to QTA for the program. The Assistant Secretary (SES Band 1) responsible for teaching policy, is responsible for administering the program, and will be the delegate. The Minister for Education will make the final approval of the grant opportunity guidelines.

 

Applications will be assessed against eligibility criteria outlined in the grant opportunity guidelines, aligned to the CGRGs. Proposals will be considered against the following criteria:

• strong applied knowledge of the Quality Teaching Model, developed by Associate Professor James Ladwig with founder of the Quality Teaching Academy, Laureate Professor Jenny Gore;
• experience in delivering professional learning on the QTR to teachers via face-to-face workshops and/or online; and
• ability and experience to support schools in the effective implementation of Quality Teaching Rounds in context/ in situ.

 

The department will procure a number of services to design and deliver the suite of
micro-credential courses. The department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements.

 

A range of procurement methods may be used such as open tenders or procurements under existing arrangements. Final spending decisions will be made by an appropriate SES delegate responsible for administering the program.

 

Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations. Providers that will be eligible to apply for this procurement include higher education providers, certified professional learning institutions and Teacher Regulation Authorities.

 

Selection criteria for the procurement include:

• aligning courses with the Australian Professional Standards for Teachers;
• ensuring the courses are recognised by the Australian Quality Framework, and counts towards professional learning requirements for teachers;
• aligning courses with the department's definition of a micro-credential;
• highlighting the benefits and increased accessibility of the courses;
• expertise in one or all of the focus areas: phonics, classroom management and explicit instruction;
• ability to house the micro-credentials on an existing IT platform; and
• ability to develop an automatic assessment function on the platform to assess the learning of teachers.

 

In addition, all applicants will need to be able to justify which elements of the focus areas they propose developing professional learning on and why.

 

Funding decisions in relation to the QTR grant will not be suitable for a merits review. QTA has already been identified as the provider to receive the grant to expand the QTR Program. There will be no scope for selection of other organisations and therefore no requirement for an independent review of decisions. QTA was directly selected to deliver this part of the program because they developed the Quality Teaching Model which the QTR Program is based on and have the knowledge and expertise to expand the QTR program.

 

In addition, the grant involves an allocation of a finite resource to QTA and overturning the decision to allocate funding to another party would affect the funding to be allocated to QTA. 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 ARC's guide).

 

Given that the QTA established the QTR Program, it is not reasonably foreseeable nor envisaged that any other organisation would receive funding in relation to this initiative.

 

Funding decisions made in connection with the design and delivery of the Micro-Credential Courses are also not considered suitable for 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 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 ARC's guide).

 

The process of selecting a provider to design and deliver the Micro-credential Courses 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 program forms part of a broader suite of policy measures announced by the Australian Government in its response to the QITE Review, which was undertaken by a panel of experts in 2021. Throughout the consultation phase of the QITE Review, the Panel heard from 3,000 people interested in ITE, broadly in the three following stakeholder groups:

• Education sector stakeholders: State and territory education departments and Teacher Regulatory Authorities, independent and Catholic school sectors, higher education providers, education peak bodies and associations, professional associations, unions;
• System users: Teachers and principals, ITE students, ITE student pipeline (senior secondary students and mid-career professionals), school students and their parents; and
• Experts and insights: Academics and researchers, data specialists, non-government organisations, Aboriginal and Torres Strait Islander education experts and other stakeholders from a variety of relevant fields.

 

The consultations were extensive and included all persons likely to be affected by the program. Findings from the consultations supported the need to support ITE students and early career teachers with access to evidence-based and high-quality professional learning opportunities.

 

Funding for the program of $10.8 million over four years from 2022-23 will be included in the October 2022-23 Budget and the Portfolio Budget Statements, Education Portfolio. Funding for this item will come from Program 1.5: Early Learning and Schools Support, which is part of Outcome 1.

 

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

 

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 relating to the Convention on the Rights of the Child (CRC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Article 4 of the CRC provides that 'States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.'

 

Article 28 of the CRC requires States Parties to recognize the right of the child to education, and outlines steps to be taken by States Parties to achieve the full realization of this right.

 

Article 29 of the CRC refers to the States Parties' agreement that education should develop each child's personality and talents to the fullest potential; and should encourage children to respect their parents, their cultures and other cultures.

 

Article 2(1) of the ICESCR provides that 'Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.'

 

Article 13 of the ICESCR relates to the right of everyone to education, and the required steps to be taken by States Parties to achieve the full realization of this right.

 

The program is directed at improving quality teaching to improve outcomes for primary and secondary school students. The program aims to achieve this by supporting the current teaching workforce to utilise evidence-based professional learning to promote quality teaching.

 

 

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 Measures No. 1) Regulations 2022

 

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 noncorporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Education Measures No. 1) Regulations 2022 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Education (the department).

 

This disallowable legislative instrument makes the following amendments to Part 3 of Schedule 1AB:

*         adds table item 59 ' Grant to Australian Indigenous Education Foundation'.

This disallowable legislative instrument also makes the following amendments to Part 4 of Schedule 1AB:

*         adds table item 558 'Promoting quality in the exiting teacher workforce';

 

Table item 59 - Grant to Australian Indigenous Education Foundation

 

Table item 59 establishes legislative authority for the Government to provide a grant to the Australian Indigenous Education Foundation (AIEF) to deliver the AIEF Scholarship Program, which support Aboriginal and Torres Strait Islander students to access education.

 

The AIEF was established in 2008 in response to community demand from Indigenous families who choose to enrol their children in boarding schools. The AIEF works in partnership with schools, universities and residential education facilities (for example boarding providers) to support Aboriginal and Torres Strait Islander students to access quality education throughout Australia.

 

Grant funding of $32 million over two years from 2022-23 will be available to the AIEF Scholarship Program to enable Aboriginal and Torres Strait Islander students to pursue their education at leading Australian boarding schools and universities by covering tuition and boarding fees and educational expenses to ensure students enjoy the full range of opportunities at AIEF Partner Schools. AIEF scholarship amounts vary between students depending on a number of factors including ABSTUDY entitlements, level of boarding and tuition fees at the relevant AIEF Partner School, and parental contribution to school fees. This support enables students to access quality education in culturally inclusive environments, where they develop the skills and confidence to fulfil their potential.

 

Human rights implications

 

Table item 59 engages the following right:

*         the right to education of children - Articles 28 and 29 of the Convention on the Rights of the Child (CRC), read with Article 4, and the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2.

 

Right to education

 

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC. These rights include 'the right of the child to education' (Article 28).

 

Article 29(1)(a) of the CRC provides that 'States Parties agree that the education of the child shall be directed to ... the development of the child's personality, talents and mental and physical abilities to their fullest potential'.

 

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

 

Article 13(2)(a)-(b) of ICESCR relates to the right of everyone to primary education that is compulsory and free and to secondary education that is generally available and accessible to all. Article 13(3) relates to the liberty of parents and guardians to choose schools for their children provided those schools confirm to minimum educational standards. 

 

Table item 59 supports the right to education because it will provide financial support for Aboriginal and Torres Strait Islander students to attend schools and universities. The funding provided to AIEF will allow AIEF to fund scholarships that will assist to increase access to culturally-inclusive education for Aboriginal and Torres Strait Islander students.

 

Conclusion

 

Table item 59 is compatible with human rights because it promotes the protection of human rights.

 

Table item 558 - Promoting quality in the existing teacher workforce

 

Table item 558 establishes legislative authority for government spending on the Promoting quality in the existing teacher workforce (the program), which aims to develop and deliver courses and programs that support the professional development of teachers.

 

The program responds to the Quality Initial Teacher Education (QITE) Review, which found that investing in the quality of the existing teacher workforce is required to maintain a
high-quality of teaching. In addition, it also found that many early career teachers feel
under-prepared from their initial teacher education (ITE) courses in teaching phonics and dealing with classroom disruption.

 

The program responds to these concerns through the two-measures: Quality Teaching Rounds and Micro-credential Courses, which aligns with the Government's longstanding commitment to quality teaching. These professional learning measures will support the existing teaching workforce by providing access to low or no cost professional learning and help ensure Australian students have access to quality teachers who use evidence-based practise to support improved outcomes.

 

Funding of $10.8 million over four years from 2022-23 will be available to the program.

 

Human rights implications

 

Table item 558 engages the following right:

• the right to education - Article 13 of the ICESCR, read with Article 2 and Articles 28 and 29 of the CRC, read with Article 4.

 

Right to education

 

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

 

Article 13 of the ICESCR relates to the right of everyone to education, and the required steps to be taken by States Parties to achieve the full realization of this right.

 

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

 

Article 28 of the CRC requires States Parties to recognize the right of the child to education, and outlines steps to be taken by States Parties to achieve the full realization of this right.

 

Article 29 of the CRC refers to the States Parties' agreement that education should develop each child's personality and talents to the fullest potential; and should encourage children to respect their parents, their cultures and other cultures. 

 

Table item 558 promotes the right to education as the purpose of the program is to improve student outcomes by improving teacher quality through supporting teachers to utilise evidence-based professional learning. 

 

Conclusion

 

Table item 558 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance