Details of the Financial Framework (Supplementary Powers) Amendment

(Education, Skills and Employment Measures No. 5) 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. 5) 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 - In the appropriate position in Part 2 of Schedule 1AB (table)

 

This item adds a new table item to Part 2 of Schedule 1AB to establish legislative authority for government spending on a certain activity administered by the Department of Education, Skills and Employment (the department).

 

New table item 13 establishes legislative authority for the Government to provide grants to a state or territory to develop, test and implement approaches allowing apprenticeships to be completed more quickly.

 

The Australian Government will provide grant funding to New South Wales (NSW) and South Australia (SA) to develop the Accelerating Australian Apprenticeships pilot (the pilot) to accelerate progression through Australian Apprenticeships. Leveraging their experience and existing work, NSW and SA will co-design a pilot that could include new ways to increase the use of recognition of prior learning (RPL), and incentivise employers and apprentices to participate in fast-tracked apprenticeships. The pilot will commence in April 2022 and run for 12 months, followed by an independent evaluation.

 

The policy objective of the pilot is to rapidly increase the availability of skilled workers in priority areas of skill shortages or high future demand, through increased adoption of RPL in apprenticeships and traineeships. The pilot would demonstrate the value of alternatives to time-based apprenticeships and provide insights to inform future reforms.

 

Although current training packages are designed to support competency-based training, historical and systemic barriers in the system serve to promote a 'time-served' approach to apprenticeship training, rather than recognising existing skills or the capacity for some students to accelerate their learning and development. On average, apprenticeships take three years or longer to complete, and this is contributing to critical skills shortages in the modern fluid workforce environment. The pilot will test new ways of delivering apprenticeships so that apprentices who already have relevant skills and experience can complete their training faster.

 

The target group for the pilot is individuals aged 20 and over who have at least three years of relevant experience, and are commencing an Australian Apprenticeship of at least two years' nominal duration in an occupation experiencing current shortage and future skills demand in accordance with the National Skills Commission's Skills Priority List. Eligible participants will be guided through an RPL process to recognise their relevant skills and experience, and complete their Australian Apprenticeship through a customised accelerated training plan, fast-tracking their apprenticeship.

 

Funding will be provided to the NSW and SA governments under grant agreements to administer the co-designed pilot in their respective jurisdictions, including to:

*         make payments to registered training organisations selected by the states to undertake RPL and to develop and deliver an accelerated training plan to participants;

*         engage facilitators to guide employers and participants through the pilot process; and

*         make incentive payments to employers of Australian Apprentices and the apprentices themselves who are being fast-tracked to completion through both RPL and accelerated training.

 

The department will provide the pilot funding to the two participating states through a written grant agreement. Decisions about this expenditure will be made in accordance with the department's Accountable Authority Instructions and delegations on the expenditure of relevant monies, and the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

This financial arrangement is exempt from requirements under the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). This is because paragraph 2.6(g) of the CGRGs provides that financial assistance provided to a state in accordance with section 96 of the Constitution is taken not to be a grant for the purposes of the CGRGs.

 

The final decision to approve the grant will be made by a delegate of the Secretary of the department under the Financial Framework (Supplementary Powers) Act 1997. The delegate will be the First Assistant Secretary, Apprenticeships and Workforce Skills Division in the Skills and Training Group of the department. The delegate has responsibility for apprenticeships policy and programs and as such, is appropriate to make the decision about these grants. The delegate will approve the grant once the Minister for Employment, Workforce, Skills, Small and Family Business and the Prime Minister approve the final co-design model for the pilot.

 

Funding decisions made in connection with the grants to NSW and SA will not be subject to independent review as they involve the allocation of a finite resource, from which all potential claims for the share of the resource cannot be met. An allocation that has already been made to another party would be affected by overturning the original decision. 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 4.14 of the guide, What decisions should be subject to merit review? (ARC guide)).

 

The department has consulted with the following external stakeholders to support the delivery of the pilot: the Mining Skills Organisation and the Human Services Skills Organisation as relevant skills organisations. The South Australian Department for Innovation and Skills and Training Services NSW were also closely engaged on the pilot design.

 

Funding for this pilot of $10.5 million (including $0.5 million for the evaluation) for a period of three years commencing in 2021-22 is expected to be included in the 2021-22 Mid-Year Economic and Fiscal Outlook and the Portfolio Additional Estimates Statements for the Education, Skills and Employment Portfolio. Funding will come from Program 3.1: Building Skills and Capability, which is part of Outcome 3.

 

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 power to grant financial assistance to the states (section 96); and

*         the territories power (section 122).

 

Power to grant financial assistance to the states and territories power

 

Section 96 of the Constitution empowers the Parliament to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.

 

The item will facilitate the provision of grants of financial assistance to a state or territory - and initially to the states of NSW and SA - to enable the state or territory to develop, test and implement measures directed at allowing apprenticeships to be completed more quickly.

 

Item 2 - Part 4 of Schedule 1AB (table item 460, column headed "Program")

 

Table item 460 in Part 4 of Schedule 1AB establishes legislative authority for government spending on the Tertiary Access Payment (TAP), which is administered by the department.

 

Item 2 omits the word "Outer" from the name of the program specified in table item 460 to reflect that eligibility for the TAP has been extended to include school leavers from inner regional areas, in addition to outer regional areas and remote areas.

 

Item 3 - Part 4 of Schedule 1AB (table item 460, column headed "Objective(s)")

 

Item 3 omits the word "outer" from the objective of the program specified in table item 460 to reflect that eligibility for the TAP has been extended to include students from inner regional areas, in addition to outer regional areas and remote areas.

 

The TAP has been developed in response to Recommendation 2, proposed action 7 of the National Regional, Rural and Remote Tertiary Education Strategy final report (Napthine Review). The Napthine Review highlights that regional and remote students who relocate to undertake tertiary study face costs of up to $30,000 a year, and the current income support system does not adequately address these financial barriers. The Napthine Review also found that regional and remote students are twice as likely as those in major cities to take a gap year or years before commencing higher education, which increases their likelihood of not completing, or not returning to, further study. The Napthine Review was publicly released on 28 August 2019. It made seven recommendations and proposed 33 individual key actions aimed at improving regional and remote tertiary education outcomes.

 

On 19 June 2020, the then Minister for Education, the Hon Dan Tehan MP, announced a number of measures to support regional and remote tertiary education, including the TAP, in response to the recommendations of the Napthine Review.

 

The TAP was initially established as a $5,000 non-indexed payment to school leavers from outer regional areas and remote areas of Australia who need to relocate for full-time, higher-level tertiary education at an education provider located at least 90 minutes by public transport from their family home. It aims to assist eligible school leavers with the additional costs associated with relocating in their first year of study. The payment also encourages students to complete Year 12 and not delay further education.

 

The department commissioned an independent evaluation of the TAP to assess its appropriateness and effectiveness at the end of its inaugural year. In response to the findings of the evaluation, the Government has agreed to the following changes to the TAP for implementation in the 2022 academic year:

*         broadening eligibility to include students from inner regional areas;

*         returning administration for all students to Services Australia; and

*         introducing differential payments between inner regional and outer regional, remote and very remote students.

 

These changes continue to align with the Australian Government's commitment to support regional communities and the recommendations and actions of the Napthine Review, which recommended improving financial assistance for people in regional and remote areas to undertake tertiary study, to help reduce disparity in participation and attainment with students from the cities.

 

In recognition of the higher relocation costs faced by students from outer regional and remote areas identified in the Napthine Review, there will be differential payment rates for students relocating from outer regional, remote and very remote locations ($5,000 - the current payment amount) compared to students from inner regional areas ($3,000). This recognises participation and attainment rates decrease and associated relocation costs increase, the further away students are from a major city.

 

Services Australia will deliver the TAP from 2022 to all eligible students relocating to study at a university, VET provider or non-university higher education provider (NUHEP). A single point of access reduces complexities around eligibility, seeking advice and applying, making promotion and delivery more consistent. Students already engage with Services Australia for other financial support such as Youth Allowance.

 

The TAP will remain a one-off payment in the student's first year of study, the year following completion of Year 12, with students required to meet eligibility criteria. These include:

*         meet Australian citizenship or residency requirements;

*         be from an inner regional, outer regional, remote or very remote area (as per the Australian Statistical Geography Standard (ASGS) remote classifications);

*         enrolled in a Certificate IV or above qualification, at least 75 per cent of a full-time study load, with a minimum duration of a year;

*         study face-to-face, or in a dual delivery mode, for at least part of the course;

*         aged 22 and under;

*         have relocated or demonstrate intent to relocate for study (relocating to study at an education provider located at least 90 minutes by public transport from their family home); and

*         parent(s) or guardian(s) have a combined income of $250,000 or below per year.

 

Legislative authority for payments to higher education providers to pay the TAP to higher education students in 2021 was provided under Part 2-3 of the Higher Education Support Act 2003. Legislative authority for payments to eligible students enrolled in VET and NUHEPs in 2021 was provided by table item 460 in Part 4 of Schedule 1AB. The amended table item 460 will provide legislative authority for the changed TAP.

 

Services Australia will continue to administer payments to students as eligibility-based grants, subject to the PGPA Act and the CGRGs. The TAP Program Guidelines will be updated for implementation in 2022 and published on the GrantConnect and departmental websites. Details on how to apply for the payment are available on the Services Australia website and will be updated prior to the commencement of the 2022 academic year. Information about payment recipients will not be publicly available due to privacy constraints.

 

Final details of the decision making process for making of payments to students who relocate to study at universities, NUHEPs and VET providers will be finalised through amendments to the current service agreement between the department and Services Australia, as well as Services Australia's Policy Manual for the TAP. Final decisions about Commonwealth expenditure on the payments will be made by a delegate of the Secretary of the department at the SES Band 1 level. The delegate will be the Assistant Secretary, Governance, Quality and Access Branch of the department, which has policy responsibility for the TAP.

 

Payments will be made to students relocating to study at universities, NUHEPs and VET providers, subject to the student meeting eligibility requirements. It is not appropriate for such decisions to be subject to independent merits review as these decisions are automatic; that is, decisions are based on the factual determination of whether an applicant meets the objective eligibility criteria set out in the Program Guidelines. If the applicant meets these criteria, the making of a payment is mandatory. As such, there are no grounds on which merits review can operate. The ARC has recognised that it is justifiable to exclude merits review in relation to automatic or mandatory decisions of this nature (see paragraphs 3.8 to 3.12 of the ARC guide).

 

Although external merits review will not be available, students who do not receive a payment for the following reasons will be able to seek internal review of the decision by applying to Services Australia:

*         a decision that the student does not meet the eligibility criteria; or

*         a decision that the student is not eligible for the second instalment of their payment (if applicable) because they are no longer considered to be enrolled in their course of study.

 

Universities, peak organisations and students participated in the independent evaluation of the TAP. The evaluation report concluded that the payment has been valued and appreciated by regional students contributing to meeting their accommodation and relocation costs.

 

Communication with stakeholders such as peak bodies and universities on the changes to the TAP is anticipated to occur in late 2021.

 

Extensive consultations were also undertaken on the Job-ready Graduates Package, including the TAP, which was announced on 19 June 2020. Specific consultation on the Package's regional measures included state and territory education bodies, and peak bodies such as the Regional Universities Network and the Isolated Children's Parents' Association.

 

In addition, there was substantial consultation on the Napthine Review which led to the recommendation of a TAP, including with universities, peak bodies, think tanks, educators, government agencies, community organisation, parents and training providers. The TAP has support from several key stakeholders including the Regional Universities Network.

 

Total funding for the TAP is estimated at $175 million over four years from 2021-22. This includes $5.2 million for associated administration costs of Services Australia. The TAP is an ongoing payment.

 

Funding for this item comes from Program 2.3: Higher Education Support, which is part of Outcome 2 for the department. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at page 57.

 

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

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the student benefits aspect of the social welfare power (section 51(xxiiiA)) of the Constitution.

 

Social welfare power

 

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 program will provide funding for grants to regional and remote students to relocate to study at a registered higher education provider or VET provider at least 90 minutes by public transport from their home.

 

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

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on a certain activity administered by the department.

 

New table item 530 establishes legislative authority for government spending on the School Leavers Information Service (the Service), which is comprised of the existing School Leavers Program (provision of information and support services to school leavers to help them navigate post-school pathways) and a trial of the service with older job seekers enrolled in online employment services. New table item 530 also establishes additional legislative authority for government spending on the existing School Leavers Program, which is presently provided by table item 432 in Part 4 of Schedule 1AB.

 

School Leavers Program

 

The Service will be delivered by the National Careers Institute (NCI, part of the department), which is responsible for the School Leavers Program (the Program). The Program was established in 2020 in order to provide information and support services to school leavers, who were disproportionately affected by the COVID-19 pandemic, to assist them navigate post-school pathways, make informed decisions about their future and transition to post-school employment.

 

The Program currently provides access to personalised career guidance (including one career guidance session with a qualified career practitioner) to individuals aged 15 to 24 years (currently known as the School Leavers Information Service). The School Leavers Information Kit (the Kit) was also developed as part of the Program to assist young people understand their options for education, training and work, and choose the right option for them. The Kit is available for download from the Your Career website (yourcareer.gov.au). The NCI also distributes printed copies of the Kit to schools at their request, and makes printed copies available at outreach events such as jobs fairs, careers exhibitions and in-school, face-to-face events.

 

An individual accessing the Program initially speaks with an information officer, who assists the individual to:

*         navigate the Kit;

*         access and use the Your Career website and tools; and

*         find relevant support services, if relevant.

 

Eligible individuals may access a 45-minute personalised career guidance session with a qualified career practitioner. In those sessions, a career practitioner considers an individual's circumstances and tailors the information, advice and assistance in relation to a range of matters, including, for example, career planning and management, training and studying, or looking for work. Career guidance sessions are delivered by telephone or, where there is an identified need to support an individual's experience, videoconferencing.

 

Temporary extension to digital job seekers (the trial)

 

Eligibility for the Service will be temporarily extended to job seekers aged 25 years and over who are enrolled in online employment services (digital job seekers). The extended eligibility will commence on 1 January 2022 and conclude on 30 June 2022, with the number of career guidance sessions available to digital job seekers throughout the trial capped at 1,820. During the trial, digital job seekers will be able to access the Service through the existing Program architecture.

 

The objective of the trial is to extend access to tailored career guidance to a broader cohort of Australians - including older Australians - boosting their prospects for further education and employment opportunities and supporting economic recovery from the impact of the COVID-19 pandemic.

 

The department currently engages contractors to support the delivery of the Program. Additional contractors will be engaged to support the implementation of the trial. An external service provider will be engaged to evaluate the trial. The evaluation will test demand and identify delivery adjustments to inform future policy development.

 

Decisions about those procurements will be conducted in a manner consistent with the PGPA Act, the Commonwealth Procurement Rules (CPRs), and the Accountable Authority Instructions of the department.

 

Decisions to approve commitments of relevant money will be made by the Assistant Secretary, Programs and Engagement Branch, in their capacity as a delegate of the Secretary of the department who is responsible for overseeing the delivery of the Program. Procurement decisions will be based on value for money (including capability and capacity to deliver), price and risk considerations. Information on any tenders and resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are executed, in accordance with applicable requirements of the CPRs.

 

Procurement decisions, once made, will be final and not subject to merits review. The ARC takes the view that decisions to provide one-off payments to certain service providers, over other service providers, may be excluded from merits review (see paragraphs 4.16 to 4.17 of the ARC guide.

 

The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation may provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

 

The Service and the Kit, which form part of the existing Program, were developed by peak industry bodies and youth groups, young people, and experts in labour market functioning and career practice (for example, the National Skills Commission, the Career Industry Council of Australia, and Year 13) to ensure the content and advice provided is based on contemporary best practice in a way that will resonate - and be effective in communicating - with young people. Both the Service and the Kit aligned with feedback gathered through a comprehensive, national consultation process between October and December 2019.

 

The NCI has recorded a growing increase in demand for career guidance sessions. The Service's current and future offerings have been informed by experiences and evaluations from young people who have engaged with the Service, 90 per cent of whom expressed satisfaction with the Service.

 

Initial funding for the Program of $0.9 million in 2020-21 was included in the 2020-21 Budget under the measure 'COVID-19 Response Package -- JobTrainer Fund -- establishment'. Details are set out in Budget 2020-21, Budget Measures, Budget Paper No. 2 2020-21 at pages 227 to 228. In the 2021-22 Budget, the Government agreed to extend the Program until the end of June 2023.

 

Funding for the trial of $1.4 million for a period of two years commencing in 2021-22 is expected to be included in the 2021-22 Mid-Year Economic and Fiscal Outlook and the Portfolio Additional Estimates Statements for the Education, Skills and Employment Portfolio. Total funding for the Service of $10.5 million over two years from 2021-22 will come from subprogram 3.1.3 'Support for the National Training System' under Program 3.1: Building Skills and Capability, which is part of Outcome 3. 

 

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 communications power (section 51(v)); and

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

 

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 Service and the trial involve expenditure on the distribution of material via telephone and the internet. The Kit involves expenditure on the distribution of material via the internet (as well as the development of content for distribution by those means).

 

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 following conventions:

*         the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Articles 2 and 6. Article 2 of the ICESCR requires Australia to take steps to achieve the 'full realization' of the rights enumerated within the ICESCR, including the right to work guaranteed by Article 6 of the ICESCR through the provision of 'technical and vocational guidance and training programmes, policies and techniques';

*         the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122), particularly Articles 1 and 2. Article 1(1) of the ILO Convention 122 requires Australia to pursue 'an active policy designed to promote full, productive and freely chosen employment.' Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'. Article 2 of the ILO Convention 122 further requires Members to 'decide on and keep under review ... the measures adopted for attaining the objectives specified in Article 1', and to 'take such steps as may be needed ... for the application of these measures'; and

*         the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142), including Articles 1 to 4. Article 1(1) of the ILO Convention 142 requires Australia to develop and adopt 'comprehensive and co-ordinated policies and programmes of vocational training'. Article 2 requires Australia to establish and develop 'open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training'. Article 3 requires Australia to gradually extend its systems of vocational guidance. That guidance covers, among other things, the choice of an occupation and vocational education and training related educational opportunities. Article 4 requires Australia to gradually extend, adapt and harmonise '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'.

 

Funding for the Service and the trial is directed at helping young people and trialling support to job seekers to find preferred education pathways and employment.

 

 

 

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 2 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 5) 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. 5) 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 (the department).

 

This disallowable legislative instrument makes the following amendments to Part 2 of Schedule 1AB:

*         adds table item 13 'Grants to improve apprenticeships'.

 

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

*         amends table item 460 'Tertiary Access Payment for Regional and Remote School Leavers'; and

*         adds table item 530 'School Leavers Information Service'.

 

Table item 13 - Grants to improve apprenticeships

 

Table item 13 establishes legislative authority for the Government to provide grants to a state or territory to develop, test and implement approaches allowing apprenticeships to be completed more quickly.

 

The Australian Government will provide grant funding to New South Wales (NSW) and South Australia (SA) to develop a pilot to accelerate progression through Australian Apprenticeships. Leveraging their experience and existing work, NSW and SA will co-design a pilot that could include new ways to increase the use of recognition of prior learning (RPL) and incentivise employers to facilitate fast-tracked apprenticeships. The pilot will commence in April 2022 and run for 12 months, followed by an independent evaluation.

 

The policy objective of the pilot is to rapidly increase the availability of skilled workers in priority areas of skill shortages or high future demand, through increased adoption of RPL in apprenticeships and traineeships. The pilot would demonstrate the value of alternatives to time-based apprenticeships and provide insights to inform future reforms.

 

Human rights implications

 

Table item 13 engages the following rights:

*         the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2, and Article 1 of the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142); and

*         the right to work - Article 6 of the ICESCR, read with Article 2, and Article 1 of the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122).

 

Right to education

 

Article 2(1) of the ICESCR provides that each State Party to the ICESCR undertakes to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in that Covenant by all appropriate means, including particularly the adoption of legislative measures.

 

Article 13(1) of the ICESCR provides that the States Parties to the treaty:

*         recognise the right of everyone to education;

*         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; and

*         agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all the nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

 

Article 13(2)(b) of the ICESCR provides that vocational education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education.

 

Article 13(2)(c) of the ICESCR provides that higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.

 

Article 1(1) of the ILO Convention 142 provides that each Member shall adopt and develop comprehensive and coordinated policies and programs of vocational guidance and vocational training, closely linked with employment.

 

Table item 13 promotes the right to education through a program of vocational guidance and training which is closely linked to employment. The pilot is designed to facilitate individuals’ access to vocational education and training (VET) opportunities through recognising their existing skills and experience and accelerating the delivery of training. The measure will allow participants to access a combination of on-the-job training as well as VET and other forms of training through an accelerated pace of delivery customised to suit their needs and skills. This will enable participants to move through Australian Apprenticeships at an accelerated and flexible rate to respond to the needs of employers and build their career pathway options by equipping them with a high-demand skill set.

 

Right to work

 

Table item 13 engages Article 6 of the ICESCR, relevantly:

*         Article 6(1) of the ICESCR provides that the States Parties recognise the right to work; and

*         Article 6(2) of the ICESCR sets out the steps to be taken by the States Parties to achieve the full realisation of that right, including providing technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual.

 

Article 1(1) of the ILO Convention 122 provides that, with a view to stimulating economic growth and development, raising levels of living standards, meeting workforce requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment.

 

Table item 13 promotes the right to work by providing participants with increased opportunities to access education and training that recognises and makes use of their existing skills and knowledge, to help them develop skills at an accelerated pace that are in high demand in the economy.

 

Conclusion

Table item 13 is compatible with human rights because it promotes the protection of human rights.

 

Amended table item 460 - Tertiary Access Payment for Regional and Remote School Leavers

 

The amended table item 460 establishes legislative authority for government spending on the Tertiary Access Payment (TAP) to eligible school leavers from regional and remote areas of Australia who need to relocate to access tertiary study. Amendments to table item 460 omit the word 'outer' from the name and objective of the program to reflect that eligibility for the TAP has been extended to include students from inner regional areas, in addition to outer regional areas and remote areas.

 

The TAP was established in 2020 in response to Recommendation 2, proposed action 7 of the National Regional, Rural and Remote Tertiary Education Strategy final report (Napthine Review). The Napthine Review highlights that regional and remote students who relocate to undertake tertiary study face costs of up to $30,000 a year, and the current income support system does not adequately address these financial barriers.

 

The department commissioned an independent evaluation of the TAP to assess its appropriateness and effectiveness at the end of its inaugural year. The following changes will be made to the TAP for implementation in the 2022 academic year:

*         broadening eligibility to include students from inner regional areas;

*         returning administration for all students to Services Australia; and

*         introducing differential payments between inner regional and outer regional, remote and very remote students.

 

The amended TAP will provide a non-indexed, means-tested payment of $3,000 to students from inner regional areas and a payment of $5,000 to students from outer regional, remote and very remote areas who relocate to undertake full-time, higher-level tertiary education and who meet certain eligibility criteria. Differential payments based on the student's regional classification recognise participation and attainment rates decrease, and relocation costs increase, the further away students are from a major city.

 

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 labour market. There continues to be a significant city-country divide in tertiary education attainment rates - individuals in regional and remote areas are half as likely as their city counterparts to obtain a university degree by the age of 35. The TAP addresses this disparity by providing an incentive for relocating students to undertake further study immediately following completion of secondary school, rather than taking a gap year. The changes increase the availability of payments to a greater number of regional students.

 

Human rights implications

 

The amended table item 460 engages the following rights:

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

 

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.

 

Article 13(1) of the ICESCR states that the States Parties 'recognise 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) of the ICESCR states that 'higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means...'

 

The amended TAP will support the right of more students, extending eligibility to inner regional school leavers alongside outer regional and remote school leavers, to tertiary education by providing financial assistance to these relocating students who otherwise may not be able to afford to undertake further study. It will also act as an incentive for these students to undertake a higher-level tertiary qualification immediately following school, rather than taking a gap year. The Napthine Review highlights that regional and remote students are twice as likely as those in major cities to take a gap year or years before commencing higher education, which increases their likelihood of not completing, or not returning to, further study.

 

Conclusion

 

The amended table item 460 is compatible with human rights because it promotes the protection of human rights.

 

Table item 530 - School Leavers Information Service

 

Table item 530 establishes legislative authority for government spending on the School Leavers Information Service (the Service), which is comprised of the existing School Leavers Program (provision of information and support services to school leavers to help them navigate post-school pathways) and a trial of the service with older job seekers enrolled in online employment services.

 

The Service will be delivered by the National Careers Institute (NCI, part of the department), which is responsible for the School Leavers Program (the Program). The Program was established in 2020 in order to provide information and support services to school leavers, who were disproportionately affected by the COVID-19 pandemic, to assist them navigate post-school pathways, make informed decisions about their future and transition to post-school employment.

 

The Program currently provides access to personalised career guidance (including one career guidance session with a qualified career practitioner) to individuals aged 15 to 24 years (currently known as the School Leavers Information Service). The School Leavers Information Kit (the Kit) was also developed as part of the Program to assist young people understand their options for education, training and work, and choose the right option for them.

 

Eligibility for the Service will be temporarily extended to job seekers aged 25 years and over who are enrolled in online employment services (digital job seekers). The extended eligibility will commence on 1 January 2022 and conclude on 30 June 2022, with the number of career guidance sessions available to digital job seekers throughout the trial capped at 1,820. During the trial, digital job seekers will be able to access the Service through the existing Program architecture.

 

The objective of the trial is to extend access to tailored career guidance to a broader cohort of Australians - including older Australians - boosting their prospects for further education and employment opportunities and supporting economic recovery from the impact of the COVID-19 pandemic.

 

Human rights implications

 

Table item 530 engages the following rights:

*         the right to work - Article 6 of the ICESCR, read with Article 2, and Articles 1 and 2 of the ILO Convention 122; and

*        the right to education - Articles 1 to 4 of the ILO Convention 142.

 

Right to work

 

Pursuant to Article 2(1) of the ICESCR, Australia undertakes to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the ICESCR by all appropriate means, including particularly the adoption of legislative measures.

 

Article 6(1) of the ICESCR provides that the States Parties recognise the right to work (which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept) and take appropriate steps to safeguard this right. Article 6(2) of the ICESCR sets out the steps to be taken by the States Parties to achieve the full realisation of that right, including providing technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual.

 

Article 1 of the ILO Convention 122 provides that (among other things), with a view to stimulating economic growth and development, raising levels of living, meeting workforce requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment.

 

Article 2 of the ILO Convention 122 provides that each Member shall, by such methods and to such extent as may be appropriate under national conditions:

*         decide on and keep under review, within the framework of a coordinated economic and social policy, the measures to be adopted for attaining the objectives specified in Article 1; and

*         take such steps as may be needed, including when appropriate the establishment of programs, for the application of those measures.

 

The Service promotes the right to work by providing personalised career guidance that aims to provide a broader cohort of individuals with tailored information, advice and assistance in relation to attaining employment. The Service does this by assisting with career planning and management, and by providing information about avenues through which individuals can obtain employment within preferred areas and occupations.

 

Right to education

 

Article 1 of the ILO Convention 142 provides that, among other things, each Member shall adopt and develop comprehensive and coordinated policies and programs of vocational guidance and vocational training, closely linked with employment. Article 1 also provides that those policies and programs should take due account of:

*         employment needs, opportunities and problems, both regional and national;

*         the stage and level of economic, social and cultural development; and

*         the mutual relationship between human resources development and other economic, social and cultural objectives.

 

Article 2 of the ILO Convention 142 provides that, with the above ends in view, each Member shall establish and develop 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 3 of the ILO Convention 142 provides that, among other things:

*         Each Member shall gradually extend its systems of vocational guidance, including continuing employment information, with a view to ensuring that comprehensive information and the broadest possible guidance are available to all children, young persons and adults, including appropriate programs for all handicapped and disabled persons; and

*         Such information and guidance shall cover the choice of an occupation, vocational training and related education opportunities, the employment situation and employment prospects, promotion prospects, conditions of work, safety and hygiene at work, and other aspects of working life in the various sectors of economic, social and cultural activity and at all levels of responsibility.

 

Article 4 of the ILO Convention 142 provides that each Member should gradually extend, adapt and harmonise its vocational training systems to meet the needs for vocational training throughout the lives 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 Service promotes the right to education by providing to a broad cohort of individuals free guidance and information on, among other things, vocational education options (such as training and studying) available to them. This guidance supports individuals to consider a preferred occupation or education and training pathway.

 

Conclusion

 

Table item 530 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance