Details of the Financial Framework (Supplementary Powers) Amendment  

(Education, Skills and Employment Measures No. 5) Regulations 2020

 

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. 5) Regulations 2020.

 

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 - In the appropriate position in Part 3 of Schedule 1AB (table)

 

This item adds a 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, Skills and Employment (the department).

 

New table item 46 establishes legislative authority for the Australian Government to provide funding for the ongoing operations of a company established to strengthen the national education evidence base for school and early childhood education, in order to position Australia's educators at the forefront of education research to improve learning outcomes for all children and young people. The company will be jointly established and owned by Education Ministers on behalf of the Australian Government and state and territory governments.

 

The Australian Government and state and territory governments have committed to the establishment of the company, and to its ongoing position and role as part of Australia's national architecture for school and early childhood education, through the National School Reform Agreement and at a meeting of the Council of Australian Governments' Education Council on 11 December 2019 (www.educationcouncil.edu.au/EC-Communiques-and-Media-Releases.aspx). It is anticipated that the company will commence operations by early October 2020.

 

The company is being established to fill an existing gap in the Australian school and early childhood education sector, as outlined in chapter 5.5 of the Report of the Review to Achieve Educational Excellence in Australian Schools (the Gonski Excellence Review) which was delivered to the Australian Government on 28 March 2018:

 

"Crucially however, no national body is expressly charged by governments with the task of delivering into teachers' hands the practical results of this evidence and research. This is a vital 'missing link' which a new national evidence and research institute will remedy. Many submissions and consultations called for just such a national research and evidence institute to be established to address this gap."

 

The recommendations of the Gonski Excellence Review (available at https://www.education.gov.au/educationalexcellencereview) informed the development of the National School Reform Agreement, including National Policy Initiative C 'Enhancing the national evidence base' which extends to establishing an independent national evidence institute to inform teacher practice, system improvement and policy development. Accordingly, establishing the company contributes to the implementation of this National Policy Initiative.

 

The National School Reform Agreement is a joint agreement between the Australian Government and state and territory governments, covering the period from 1 January 2019 to 31 December 2023 (http://www.educationcouncil.edu.au/National-School-Reform-Agreement.aspx). It sets out the long-term national goals for school education in Australia, and outlines strategic reforms in areas where national collaboration will have the greatest impact on driving improved student outcomes across Australia's schools.

 

Establishing the company further supports the goals of the Alice Springs (Mparntwe) Education Declaration (http://www.educationcouncil.edu.au/Alice-Springs--Mparntwe--Education-Declaration.aspx). The Declaration, which was made in December 2019, sets out the national vision for education and the commitment of the Australian Government and state and territory governments to improving educational outcomes for young Australians. That vision is for a world class education system that encourages and supports every student to be the very best they can be, no matter where they live or what kind of learning challenges they may face.

 

The goals of the Alice Springs (Mparntwe) Education Declaration are that the Australian education system promotes excellence and equity, and that all young Australians become confident and creative individuals, successful lifelong learners, and active and informed members of the community. The company will support these goals through its role as a trusted and independent national source for evidence-based, effective practices that support teaching and learning in Australian school and early childhood settings. A way in which this may occur is through the company generating new evidence about effective practice in Australia's school sector, curating and communicating that evidence for teachers, and developing teaching and learning resources for effective practice. This role is not currently undertaken by existing national agencies for schooling and early childhood education.

 

In addition, given the impacts of bushfires and the COVID-19 pandemic event on the school and early childhood education sector during 2020, the establishment of the company is of even more importance. This is in order to assist in bridging the gaps that may be experienced by students due to disrupted access to education.

The company will be an Australian public company, limited by guarantee, incorporated under the Corporations Act 2001. The company will have the Australian Government and state and territory governments as its members represented by Education Ministers, with all jurisdictions also contributing funding for the ongoing operations of the company. As jurisdictions will jointly own the company and have equal share of that ownership, it will not be a Commonwealth company for the purposes of the Public Governance, Performance and Accountability Act 2013. At its meeting in June 2020, the Education Council appointed Dr Jenny Donovan as the inaugural Director of the company. A name for the company is being finalised by Education Ministers.

 

The company's functions will include:

*         collaborating with government, the school and early childhood education sector, the vocational education and training sector, the higher education and research sector and philanthropic organisations;

*         developing and implementing a national agenda for research relating to school and early childhood education;

*         mobilising high quality teaching and learning resources for school and early childhood education; and

*         supporting teaching and learning in school and early childhood education.

 

The company's objectives are to ensure that:

*         the evidence base about effective practice in Australian school and early childhood settings is strengthened and new evidence is generated;

*         evidence is curated and communicated to a broad audience in ways that support easy access and successful implementation;

*         teachers, school leaders and other educators have greater confidence in identifying quality research and using data and evidence to inform their practice;

*         teachers, school leaders and other educators, as well as education leaders and policy makers, trust, value and use the evidence base; and

*         the company's research agenda identifies Australian education research priorities and influences the quality and relevance of work in the wider research community.

 

The company's focus will be on teachers, school leaders, and other educators in order to further the company's purpose and objectives. The company will have a national presence, with a geographic footprint across Australia. It is anticipated that the company will have over time a physical presence in multiple capital cities and regional locations across Australia. It is further anticipated that over time the company could partner at a local level with education providers, research organisations, philanthropic organisations, schools, and other education settings to leverage existing locations, and be strategically linked and coordinated at the ground level.

 

The Australian Government will provide funding to the company as a closed, non-competitive grant, which will be administered in accordance with the Commonwealth grants policy framework including the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). This funding will support the ongoing operations of the company.

 

Information about the grant, including grant opportunity guidelines, will be made available and reported on the GrantConnect website (www.grants.gov.au). The grant will be administered by the department, in cooperation and conjunction with state and territory governments for their funding contributions under a multi-jurisdiction members' contribution agreement.

 

The Minister for Education, under section 71 of the Public Governance, Performance and Accountability Act 2013 and section 32B of the Financial Framework (Supplementary Powers) Act 1997, will be responsible for approving the Australian Government funding being provided to the company.

 

The funding decision, once made, will be final and not subject to merits review. This is because any such decision involves an allocation of a finite resource to the company, and overturning the decision in order to allocate funding to another party would affect the allocation that has already been made to the company. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.14 of the guide, What decisions should be subject to merit review?).

 

Re-making a decision after entry into a funding agreement is legally complex, impractical and would result in delays in implementation. Given that government funding is being provided solely for the operations of the company, it is not reasonably foreseeable nor envisaged that any other organisation would receive funding in relation to this initiative.

 

The Australian Government funding for the company is part of a joint contribution, along with other funding being provided by all state and territory governments. This joint contribution reflects the joint ownership of the company by the Australian Government and state and territory governments, and ensures that the company can operate with the financial capacity to undertake its functions and achieve its objectives.

 

The inaugural Director of the company Dr Jenny Donovan is currently undertaking extensive consultations, including with state and territory governments, peak bodies for school and early childhood education, and other stakeholders in the government and non-government school and early childhood education sectors. The results of these consultations will help shape and inform the company's first strategic plan, research agenda, and work plan following establishment.

 

The Australian Government funding for the company was included in the 2018-19 Mid-Year Economic and Fiscal Outlook under the measure 'National School Reform Agreement - Commonwealth contribution to national policy initiatives'. Details are set out in the Mid-Year Economic and Fiscal Outlook 2018-19, Appendix A: Policy decisions taken since the 2018-19 Budget at page 169. At that time, the expenditure for this measure was not for publication pending the outcome of negotiations with states and territories.

 

Total funding for the company from the Australian Government and state and territory governments will be $50 million over three years from 2020-21, with the Australian Government contributing $25 million. The Australian Government funding for the company will be ongoing, and will come from Program 1.5: Early Learning and Schools Support, which is part of Outcome 1. Program details are set out in the Portfolio Additional Estimates Statements 2019-20, Education, Skills and Employment Portfolio at page 39.

 

The Minister for Education, the Hon Dan Tehan MP, announced funding for the company, including the Australian Government's funding contribution, on 12 June 2020. Media release is available at https://ministers.dese.gov.au/tehan/50-million-institute-drive-educational-outcomes. 

 

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

*         the external affairs power (section 51(xxix)); and

*         the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect.

 

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 obligations under international treaties to which it is a party.

 

Australia has obligations under Articles 4, 28 and 29 of the Convention on the Rights of the Child (CRC), and under Articles 2 and 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

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. Articles 28 and 29 of the CRC require States Parties to progressively realise the right of children to access education, and ensure that the quality of education meets certain standards.

 

Article 2 of the ICESCR requires States Parties to undertake steps to progressively realise the rights within it, including under Article 13 which recognises the right of everyone to education.

 

The purpose, functions and objectives of the company all relate to supporting teaching and learning in Australian school and early childhood education settings, and to helping improve educational outcomes. The company is a joint initiative of the Australian Government and all state and territory governments particularly directed to the access to, and quality of, education.

 

Executive power and express incidental power, including the nationhood aspect

 

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Parliament, the executive or the courts by the Constitution.

 

The executive power in section 61 of the Constitution extends to a range of matters, including:

*         the execution and maintenance of the Constitution, and the laws of the Commonwealth; and

*         activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

The company will have the Australian Government and state and territory governments as its members represented by Education Ministers, with jurisdictions also contributing funding for the ongoing operations of the company. The company's functions and objectives reflect its role at a national level, and its ongoing position and role as part of Australia's national architecture for school and early childhood education.

 

In addition to this, establishing the company implements a National Policy Initiative under the National School Reform Agreement.

 

 

 

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. 5) Regulations 2020

 

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. 5) Regulations 2020 (the Regulations) amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for the Australian Government to provide funding for the ongoing operations of a company established to strengthen the national education evidence base for school and early childhood education. The company will be jointly established and owned by the Australian Government and state and territory governments. The Department of Education, Skills and Employment has responsibility for the activity on behalf of the Australian Government.

 

The Australian Government and state and territory governments have committed to the establishment of the company, and to its ongoing position and role as part of Australia's national architecture for school and early childhood education, through the National School Reform Agreement and at a meeting of the Council of Australian Governments' Education Council on 11 December 2019. The company's ongoing position and role in Australia's national architecture for schooling and early childhood education will be as a trusted and independent national source for evidence-based effective practice in Australian school and early childhood settings, in order to position Australia's educators at the forefront of education research to improve learning outcomes for all children and young people. This role is not currently undertaken by existing national agencies for schooling and early childhood education.

 

The company's functions will include:

*         collaborating with government, the school and early childhood education sector, the vocational education and training sector, the higher education and research sector and philanthropic organisations;

*         developing and implementing a national agenda for research relating to school and early childhood education;

*         mobilising high quality teaching and learning resources for school and early childhood education; and

*         supporting teaching and learning in school and early childhood education.

 

It is anticipated that the company will commence operations by early October 2020.

 

Human rights implications

 

This disallowable legislative instrument engages the right to education:

*         Articles 28 and 29 of the Convention on the Rights of the Child (CRC), read with Article 4 of the CRC; and

*         Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2 of the ICESCR.

 

This disallowable legislative instrument engages Articles 28 and 29 of the CRC. Articles 28 and 29 require States Parties to progressively realise the right of children to access education, and ensure that the quality of education meets certain standards. Article 4 of the CRC broadly requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

 

This disallowable legislative instrument also engages the right to education contained in Article 13 of the ICESCR. Article 13 recognises 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. Article 2 of the ICESCR broadly provides that States Parties will take steps to progressively achieve the full realisation of the rights recognised in the ICESCR.

 

The establishment of the company fills an existing gap in the Australian school and early childhood education sector, and will help ensure that:

*         the evidence base about effective practice in Australian school and early childhood settings is strengthened and new evidence is generated;

*         evidence is curated and communicated to a broad audience in ways that support easy access and successful implementation;

*         teachers, school leaders and other educators have greater confidence in identifying quality research and using data and evidence to inform their practice;

*         teachers, school leaders and other educators, as well as education leaders and policy makers, trust, value and use the evidence base; and

*         the company's research agenda identifies Australian education research priorities and influences the quality and relevance of work in the wider research community.

 

Based on the above, the establishment of the company supports and promotes the rights described in Articles 28, 29 and 4 of the CRC, and Articles 13 and 2 of the ICESCR.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance