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The committee has sought further comment in relation to the following
instruments
Commonwealth Scholarships Guidelines
(Education) 2013
FRLI: F2013L02070
Portfolio: Education
Tabled: House of Representatives
and Senate, 12 December 2013
Summary of committee concerns
2.1
The committee seeks further information on the impact of the proposed
changes on the right to education and, to the extent that the instrument may
involve a limitation on that right or a retrogressive measure, a clear
statement of justification for the changes. The committee also seeks further
information as to the compatibility of the instrument with the right to
equality and non-discrimination.
Overview
2.2
Under the Higher Education Support Act 2003, the Minister may
make Commonwealth Scholarship Guidelines to give effect to matters under the
Act relating to Commonwealth Scholarships.[1]
2.3
This instrument revokes the Commonwealth Scholarships Guidelines
(Education) 2010 (the former Guidelines) and makes new guidelines to
replace them. The new Guidelines implement the 'efficiency dividend' to
university funding of 2 per cent in 2014 and 1.25 percent in 2015 announced by
the previous government on 13 April 2013 and included in the 2013-14 Budget. The
new Guidelines also set out Indigenous Commonwealth Scholarships separately from
other Commonwealth Scholarships.
Compatibility with human rights
Statement of compatibility
2.4
The statement of compatibility accompanying the instrument states that
the instrument engages and promotes the right to education.[2]
2.5
The statement of compatibility also states that the instrument 'engages
the right to equality and non-discrimination as it specifies the Indigenous
Commonwealth Scholarships Program and the Indigenous Staff Scholarships Program'.[3]
2.6
The statement concludes that the instrument is compatible with human
rights.
Committee view on compatibility
Right to education
2.7
The statement of compatibility states that:
[t]he Guidelines provide for Scholarships to support students
and staff while they are undertaking study. To the extent that the right to
education is engaged this is promoted as it increases access to education.[4]
2.8
The committee agrees that, overall, the Commonwealth Scholarships
program under the Higher Education Support Act promotes the right to education.
The committee also agrees that, to the extent that the instrument furthers the
implementation of this program, the instrument also promotes the right to
education. However, the committee notes that one of the purposes of this
instrument is to implement the 'efficiency dividend' for higher education
funding, which involves overall cuts in funding to that sector.
2.9
According to the statement of compatibility, 'the changes are not
expected to have any impact on individuals' access to education'.[5]
The statement also states that:
[t]he effect of the efficiency dividend will not effectively
reduce the numbers of Indigenous staff and students accessing these
scholarships as funding will continue to rise, albeit at a slower rate.[6]
2.10
According to the explanatory statement accompanying the bill, the 'efficiency
dividend' will be applied to the amount of the grant and the reduced amount
will then be indexed.[7]
2.11
It is not clear whether the implementation of the efficiency dividend under
the instrument will result in a reduction in the overall funding available for
Commonwealth scholarships and the number of scholarships. To the extent that
this instrument may result in a reduction of funding or numbers of scholarships,
the measure may be either a limitation on the right to education or a
retrogressive measure.
2.12
Article 4 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) provides that the rights guaranteed in the Covenant, such as the
right to education, may be limited but only by:
such limitations as are determined by law only in so far as
this may be compatible with the nature of these rights and solely for the
purpose of promoting the general welfare in a democratic society.
2.13
Our predecessor committee noted that retrogressive measures affecting
economic, social and cultural rights have to be clearly justified:
A deliberate retrogressive measure has been described to mean
any measure which implies a backwards step in the level of protection of ICESCR
as a consequence of an intentional decision by the state and includes an
unjustified reduction in public expenditure in the absence of adequate
compensatory measures aimed to protect the affected individuals. Deliberate
retrogressive measures are not prohibited per se under international human
rights law but will require close justification, even during times of severe
resource constraints, whether caused by a process of adjustment, economic
recession, or by other factors.[8]
2.14
If the application of the efficiency dividend under the instrument will
result in a reduction of funding available for Commonwealth scholarships, it is
necessary for the government to demonstrate that the measure pursues a
legitimate objective and there is a reasonable relationship of proportionality
between the means employed and the objective sought to be realised.
2.15
The statement of compatibility does not address these matters. The
committee expects that where funding cuts are made, the statement of
compatibility should provide an assessment of the practical impact on the rights
in question, including relevant justification where such rights will be limited.
2.16
The committee intends to write to the Minister for Education to
seek further information as to:
- whether the implementation of the efficiency dividend will
result in a reduction of funding for Commonwealth scholarships or a reduction
in the number of scholarships available; and
- if so, how any reduction is reasonable, necessary and
proportionate to achieving a legitimate objective.
Right to equality and non-discrimination
2.17
As set out above, the statement of compatibility notes that the
separation of Indigenous Commonwealth Scholarships from other Commonwealth
Scholarships engages the right to equality and non-discrimination. The
statement states that:
[t]o the extent that the right is engaged, it promotes the
right to self-determination as Indigenous staff and students are provided with
funding which will assist them to participate in higher education.[9]
2.18
The committee agrees that, overall, the provision of funding to
Indigenous staff and students under the Indigenous Commonwealth Scholarships
program promotes the rights of Indigenous persons. However, the purpose of this
instrument is to 'separate out Indigenous Commonwealth Scholarships from other
Commonwealth Scholarships'.[10]
2.19
This measure engages the right to equality and non-discrimination
because it constitutes a difference in treatment between persons or groups on
the basis of a prohibited ground, namely race. However, such a difference in
treatment will not constitute prohibited discrimination where its purpose is
legitimate, based on reasonable and objective criteria and proportionate to the
objective to be achieved.
2.20
The statement of compatibility does not address whether the measure
constitutes legitimate differential treatment. In particular, the statement of
compatibility does not address why it is necessary to separate out Indigenous
scholarships from other types of scholarships. Without knowing what the
objective of the measure is, the committee cannot assess whether the measure is
legitimate differential treatment.
2.21
The committee intends to write to the Minister for Education to
seek further information as to:
- what the purpose of separating out Indigenous scholarships and
other scholarships in the new Guidelines is; and
- whether the separation is reasonable and proportionate to
achieving a legitimate objective and therefore constitutes legitimate
differential treatment consistent with the right to equality and
non-discrimination.
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