Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Australian Public Service Commissioner's Directions 2016 [F2016L01430]
| Purpose |
Prescribes standards with
which Agency Heads and Australian Public Service (APS) employees must comply
to meet their obligations under the Public Service Act 1999 |
| Portfolio |
Prime Minister and Cabinet |
| Authorising legislation |
Public Service Act 1999 |
| Last day to disallow |
30 November 2016 |
| Right |
Privacy (see Appendix 2) |
| Previous reports |
8 of 2016 and 10 of 2016 |
| Status |
Concluded examination |
Background
2.3
The committee first reported on the Australian Public Service
Commissioner's Directions 2016 (the 2016 directions) in its Report 8 of 2016,
and requested further information from the Australian Public Service Commissioner
(the Commissioner).[1]
2.4
The Commissioner's response to the committee's inquiries was received on
22 November 2016 and discussed in the committee's Report
10 of 2016.[2]
2.5
A further response from the Commissioner was received on 23 June 2017.
The response is discussed below and is reproduced in full at Appendix 3.
Publishing termination decision for breach of the Code
of Conduct
2.6
Paragraph 34(1)(e) of the 2016 directions provides that decisions to
terminate the employment of an ongoing APS employee for breach of the Code of
Conduct must be published in the Public Service Gazette (the Gazette). The
requirement to publish details of an APS employee when their employment has
been terminated on the grounds of breach of the Code of Conduct in the Gazette
engages and limits the right to privacy.
2.7
The committee reported on previous similar directions, the Australian
Public Service Commissioner's Directions 2013 [F2013L00448] (the 2013
directions), in its Sixth Report of 2013, Eighteenth Report
of the 44th Parliament and Twenty-first Report of the 44th Parliament.[3]
It raised concerns about the human rights compatibility of measures relating to
the notification in the Gazette of certain employment decisions, particularly
in relation to the publication of decisions to terminate employment and the
grounds for termination. These concerns arose in relation to the right to
privacy and the rights under the Convention on the Rights of Persons with
Disabilities (CRPD).
2.8
In response to these concerns, the Commissioner conducted a review of
the 2013 directions. As a result, the 2013 directions were
amended by the Australian Public Service Commissioner's Amendment (Notification
of Decisions and Other Measures) Direction 2014 [F2014L01426] (the amendment
direction) to remove most of the requirements to publish termination decisions.
However, the requirement to notify termination on the grounds of the breach of
the Code of Conduct in the Gazette was retained at that time.
2.9
In its Twenty-first Report of the 44th Parliament,[4]
the committee acknowledged that the amendment direction addressed the
committee's concerns in relation to the compatibility of the 2013 directions
with the CRPD, and largely addressed the committee's concerns in relation to the
measure's compatibility with the right to privacy. However, the committee
considered that the retained measure to publish details of an APS employee when
their employment has been terminated on Code of Conduct grounds limited the
right to privacy.
2.10
The statement of compatibility to the 2016 directions states that the
notification of certain employment decisions in the Gazette promotes APS
employees' right to privacy insofar as there is an option for agency heads to
decide that a name should not be included in the Gazette because of the
person's work-related or personal circumstances.
2.11
The initial human rights analysis of the directions noted, however, that
rather than promoting the right to privacy, the requirement arising from
paragraph 34(1)(e) of the directions was a limit on the right to privacy.[5]
However, the statement of compatibility provided no significant evidence or
assessment of why the requirement arising from paragraph 34(1)(e) of the
directions was a reasonable and proportionate limit on the right to privacy in
pursuit of its apparent objective, that is, maintaining public confidence in
the good management and integrity of the APS.
2.12
In relation to whether there were other, less restrictive, ways to
achieve the same aim, the initial human rights analysis observed that there
were other methods by which an employer could determine whether a person had
been dismissed from the APS for breach of the Code of Conduct rather than
publishing an employee's personal details in the Gazette. For example, it was
noted that it would be possible for the APS to maintain a centralised, internal
record of dismissed employees, or to use references to ensure that a previously
dismissed APS employee was not rehired by the APS. Further, as the previous
analysis stated, it would be possible to publish information in relation to the
termination of employment for breaches of the Code of Conduct without the need
to name the affected employee.
2.13
As these matters were not addressed by the statement of compatibility,
the committee sought the advice of the Commissioner as to whether the
limitation on the right to privacy was a reasonable and proportionate measure
for the achievement of the apparent objective of the directions, and in
particular, whether there were other less rights restrictive means available.
Australian Public Service Commissioner's initial response
2.14
The Commissioner's initial response, as discussed in Report 10 of
2016,[6]
recognised that the requirement to publish details in the Gazette of an APS
employee when their employment has been terminated on the grounds of breach of
the Code of Conduct limited the right to privacy. The Commissioner stated that
the committee had raised valid questions about whether the limitation was a
reasonable or proportionate measure in upholding integrity in the APS, and
agreed that further investigation into the requirement was warranted. The
Commissioner stated that he would undertake a review into the necessity of
publicly notifying information about termination decisions on the grounds of
breach of the Code of Conduct, and that this review would include appropriate
consultation and examination of evidence regarding the deterrent effects and
impact on public confidence in the good management and integrity of the APS.
The Commissioner stated that he would notify the committee of his findings in
this matter by June 2017.
The Commissioner's further response regarding the outcome of the review
2.15
On 22 June 2017, the Commissioner informed the committee that, after
consultation with APS agencies, he had concluded that the current arrangements
of publishing terminations of employment for breaching the Code of Conduct in
the Gazette should not continue.
2.16
The Commissioner states that he intends to establish a new secure
database of employment terminations for breaches of the Code of Conduct that
will not be accessible to the general public. As outlined in the Commissioner's
response, this approach would enable agencies to access the database and
maintain the integrity of their respective workforces, while respecting the
privacy of affected employees. Appropriate amendments to the directions
will be made in this regard.
2.17
Accordingly, the Commissioner has adopted the suggestion outlined in the
committee's previous report of adopting a less rights restrictive means of
achieving the legitimate objective of the measure.
Committee response
2.18
The committee thanks the Commissioner for his response and has
concluded its examination of this issue.
2.19
The committee welcomes the commitment by the Commissioner of
establishing a new secure database of employment terminations for breaches of
the Code of Conduct that will not be accessible to the general public.
2.20
The proposed approach would substantially address the right to
privacy concerns in relation to the current measure, constituting a less rights
restrictive means of achieving the objective of maintaining public confidence
in the good management and integrity of the APS.
2.21
The committee looks forward to reviewing the amendments to the
directions when they are made.
Higher Education Support Legislation Amendment (A More Sustainable,
Responsive and Transparent Higher Education System) Bill 2017
| Purpose |
Seeks to introduce reforms
to the funding, provision and administration of higher education in Australia |
| Portfolio |
Education and Training |
| Introduced |
House of Representatives,
11 May 2017 |
| Rights |
Education; equality and
non-discrimination (see Appendix 2) |
| Previous report |
5 of 2017 |
| Status |
Concluded examination |
Background
2.22
The committee first reported on the Higher Education Support Legislation
Amendment (A More Sustainable, Responsive and Transparent Higher Education
System) Bill 2017 (the bill) in its Report 5 of 2017, and requested a
response from the Minister for Education and Training by 30 June 2017.[7]
2.23
The committee has previously commented on proposed reforms to the
funding of higher education in its Twelfth Report of the 44th
Parliament, Eighteenth Report of the 44th Parliament and
its Twenty-second Report of the 44th Parliament.[8]
2.24
The minister's response to the committee's inquiries was received on 7
July 2017. The response is discussed below and is reproduced in full at Appendix 3.
Decrease in funding for commonwealth supported students in higher education
2.25
Schedule 1 of the bill seeks to decrease the amount of commonwealth
funding or subsidies for commonwealth supported students at universities and
increase the amount of student contribution to higher education funding.[9] From 1 January
2018, a 2.5 percent efficiency dividend will be applied to commonwealth
contribution amounts in each of 2018 and 2019. Student contribution amounts for
commonwealth supported students will increase by 1.8 percent from 2018 to 2021
(7.5 percent in total).
Compatibility of the measure with
the right to education
2.26
Article 13 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) protects the right to education. It specifically
requires, with a view to achieving the full realisation of the right to
education, 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.
2.27
Australia has obligations to progressively introduce free higher
education by every appropriate means but also has a corresponding duty to
refrain from taking retrogressive measures, or backwards steps, in relation to
the realisation of the right to education.[10]
2.28
As the initial human rights analysis noted, the statement of
compatibility acknowledges that the decrease in commonwealth funding is counter
to the progressive introduction of the right to free higher education;[11] that is, it
constitutes a retrogressive measure.
2.29
Retrogressive measures may be permissible under international human
rights law providing that they address a legitimate objective, are rationally
connected to that objective and are a proportionate way to achieve that
objective. In this context, the United Nations Committee on Economic, Social
and Cultural Rights has noted that:
There is a strong presumption of impermissibility of any
retrogressive measures taken in relation to the right to education, as well as
other rights enunciated in the Covenant. If any deliberately retrogressive
measures are taken, the State party has the burden of proving that they have
been introduced after the most careful consideration of all alternatives and
that they are fully justified by reference to the totality of the rights
provided for in the Covenant and in the context of the full use of the State
party’s maximum available resources.[12]
2.30
The statement of compatibility argues that the reduction of funding is a
permissible limitation on the right to education including the progressive
introduction of free higher education:
Recalibration of Commonwealth contribution and student
contribution amounts in Schedule 1 will result in decreased Government funding
and an increase in student contributions. This measure is counter to the goal
of progressive introduction of free education however the savings measure is
proportionate to the policy objective of ensuring long-term financial
sustainability necessary to support opportunities in higher education. It also
sits within student loan arrangements that ensure no domestic student need pay
upfront fees for access to higher education. The savings as a result of this
measure will be an important contribution towards Budget repair.[13]
2.31
The previous analysis stated that, in general terms, budgetary
constraints and financial sustainability have been recognised as legitimate
objectives for the purpose of justifying reductions in government support that
impact on the progressive realisation of the right to education. However,
limited information was provided to support the characterisation of financial
sustainability or budgetary constraints as a pressing or substantial concern in
these specific circumstances. Evidence explaining why a proposed cut in funding
of this size is a proportionate reduction in terms of the right to education
was not provided in the statement of compatibility. Further, no information was
provided about the consideration of alternatives, in the context of Australia's
use of its maximum available resources.
2.32
The committee therefore sought the advice of the minister as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern in the specific
circumstances of the proposed legislation;
-
whether the limitation is a reasonable and proportionate measure
to achieve its stated objective;
-
whether alternatives to reducing higher education funding have
been fully considered; and
-
how the measure complies with Australia's obligation to use the
maximum of its available resources to progressively introduce free higher
education.
Minister's response
2.33
The minister's response re-states much of the information contained in
the statement of compatibility including acknowledging that the reduction of
commonwealth contribution is a retrogressive measure as regards Australia's
obligation to progressively realise free higher education. In relation to the
objective of the measure, the minister's response states:
This measure is reasonable and proportionate to the policy
objective of ensuring long-term financial sustainability of the higher
education system. By ensuring that the demand driven funding system can be
preserved for bachelor level studies and extended to approved sub-bachelor
courses, the rebalancing of student and Commonwealth contribution amounts
supports future opportunities for students to access higher education.
2.34
In relation to the particular budgetary context of the measures, the
minister's response further states:
Given the Budget context and the Government's commitment to a
return to surplus, there is a need to reduce the overall levels of Government
spending. The savings as a result of this measure will also be an important
contribution towards budget repair, which is an important objective of this
Government.
2.35
In this respect, it is acknowledged that budgetary constraints and concerns
about financial sustainability in the context of extending commonwealth support
to sub-bachelor degrees indicate that the measure may address a pressing and
substantial concern.
2.36
In relation to the proportionality of the measure, the minister's
response states at a general level that the measure is proportionate on the
basis that:
it creates a more sustainable higher education system and, by
doing so, ensures future generations of Australians will remain able to access
higher education and the substantial private benefits it confers.
2.37
It should be noted however that higher education confers not only
private benefits, but significant public benefits, and the ICESCR requires that
higher education be made equally accessible to all on the basis of capacity,
not ability to pay.
2.38
The minister's response provides some specific information about the
proportionality of the reduction in commonwealth funding and the application of
the efficiency dividend:
Students are well resourced through the CGS [Commonwealth
Supported Places], expenditure through which totalled $7.1 billion in 2016.
Average funding per student has increased by around 15 per cent over the five
years from 2010 to 2015. In comparison the average cost of delivery per
equivalent full time student has only grown at 9.5 per cent over the same
period. The effect of an efficiency dividend on the CGS should have minimal
effect on the ability of students to access higher education, or on providers
to deliver high quality courses.
Even after the efficiency dividend and rebalancing of
Commonwealth and student contribution amounts is fully implemented by 2021, the
Commonwealth will still fund on average 54 per cent of the cost of courses.
The rebalancing of contributions also sits within the context
of Australia's generous and highly regarded student loan scheme that ensures no
domestic student need pay upfront fees for access to higher education. That is,
despite the modest increase in student contribution amounts, access to higher
education will be maintained through the continued availability of Higher
Education Loan Program (HELP) loans.
2.39
It is acknowledged that Australian students will continue to be able to
access the higher education system through HELP loans, such that payment is
deferred until the student earns a threshold income.[14]
The provision of HELP loans to all students is relevant to Australia meeting
its obligations in relation to access to higher education. It is also relevant
to the proportionality of the retrogressive step of reducing commonwealth
funding to higher education.
2.40
However, Australia is required to take the least rights restrictive
approach in pursuing its budgetary objectives, where reductions in funding
constitute backward steps on social and economic rights. In this regard, the
minister's response does not address the committee's specific questions about
whether alternatives to reducing funding to higher education have been fully considered.
Further, in the current matter there are some uncertainties about the extent
and scope of the impact on higher education.[15]
Committee response
2.41
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.42
The preceding analysis indicates that, based on the information
provided and depending on the extent and scope of the impact on higher education,
the measure may be compatible with the right to education. However, it is noted
that Australia has an obligation under international law to progressively
introduce free higher education and the minister's response did not address
whether alternatives to reducing higher education funding had been fully
considered.
Increase in student contributions for enabling courses
2.43
Currently, students undertaking enabling courses cannot be required to
pay a student contribution amount.[16]
2.44
Schedule 2 of the bill seeks to introduce a student contribution amount
fixed at a rate of $3,271 for a full time study load in 2018. Students will be
able to borrow their contribution amount through HELP.
Compatibility of the measure with
the right to education
2.45
As set out above, article 13 of the ICESCR protects the right to
education including the progressive introduction of free higher education by
every appropriate means. The initial analysis noted that by requiring students
to make a financial contribution towards the costs of enabling courses, the
measure engages and limits the right to education.
2.46
The statement of compatibility did not identify this measure as engaging
and limiting the right to education and accordingly did not provide an
assessment of whether the limitation is permissible.
2.47
Accordingly, the committee requested the further advice of the minister
as to:
-
whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective;
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective;
-
whether alternatives to reducing higher education funding have
been fully considered; and
-
how the measure complies with Australia's obligation to use the
maximum of its available resources to progressively introduce free higher
education.
Minister's response
2.48
The minister's response acknowledges that the introduction of a student
contribution amount for enabling courses 'may be considered a retrogressive
measure in terms of the right to education, specifically the progressive
introduction of free higher education'.
2.49
In relation to the objective of the measure, the minister's response
states:
However, access to higher education is also an important
aspect of this right, and these measures are aimed at improving the system of
enabling places to assist underprepared learners to progress to undertaking
higher education courses. Enabling courses are recognised as a preparation tool
for students with social or educational disadvantages, and an important means
of access to higher education.
The Report of the Review of the Demand Driven System by Dr
David Kemp and Andrew Norton found that the overall attrition rates for
enabling courses can be as high as 40 or 50 per cent. The Report suggested that
a contributory factor is the lack of investment from the student, including in
a financial sense. By ensuring that students are making a modest financial
commitment towards their education, the measure aims to improve progression to
higher education for students enrolled in enabling places. This expands the
right to education by ensuring that there are viable alternative entry pathways
available to underprepared learners.
2.50
Improving the progression of students with social and educational
disadvantages to higher education would appear to constitute a legitimate
objective for the purposes of international human rights law.
2.51
The minister's response provides a range of information in relation to
the proportionality of the measure as a retrogressive step in the progressive
introduction of free higher education:
Further, while providers may charge a student contribution
amount for an enabling course of study, students will be able to defer these
upfront costs via a HELP loan. This ensures that the student contribution
amount does not present an upfront financial barrier for students.
Additionally, under the current system of allocation of
Commonwealth supported enabling places some providers under-utilise their
allocation which is inefficient and effectively diminishes opportunities for
individuals who may benefit from participation in an enabling course. The
measure ensures that with cyclical competitive tender processes, enabling
places will always be allocated to providers who have demonstrated a history of
high standards of academic preparation and completion rates, among other
criteria currently under consideration. The right to access higher education is
being expanded by ensuring the efficiency of allocation of these places to
providers who are most likely to fully utilise the places allocated to them,
and to deliver high quality outcomes for students.
The measure expands access to higher education by improving
the enabling funding mechanism, and incentivising commitment to ensure higher
completion rates.
2.52
The availability of HELP loans to students enrolling in enabling courses
means that the student contribution amount will not necessarily be an upfront
cost to students. However, under the HELP scheme as it currently operates,
students who do not successfully complete a course, after the census date,
still incur a HELP debt. The prospect of such a debt may be a disincentive to
disadvantaged students thinking of embarking on an enabling course. Given that
enabling courses are a preparation tool for disadvantaged students, the
significant attrition rate from enabling courses referred to by the minister
may arise from legitimate reasons other than lack of financial investment by
students, such as the financial pressures of full or part-time study or the
challenges of the course or workload for the particular student. It may be that
remission of fees for students who find themselves unable to complete an enabling
course for such reasons is necessary to ensure that students with social or
educational disadvantages feel able to take up the opportunity that an enabling
course provides.
2.53
Based on the information provided including about expanding and
incentivising access to higher education it appears that the measure may be
capable of being a proportionate limit on the progressive realisation on the
right to free higher education. However, this will in significant part depend
on the operation of the measure in practice, including the application and
remission of fees and effect on educational attainment. Monitoring of the
availability, uptake and successful completion of enabling courses will assist
in identifying whether the measure is effective in achieving its stated
objective.
Committee response
2.54
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.55
The preceding analysis indicates that, based on the information
provided, the measure may be compatible with the right to education. The
operation of the measure in practice is significant, in particular, the balance
between the incentive and disincentive effects of the application of fees, and
the treatment of fee liability for those who are unable to successfully
complete an enabling course.
2.56
Monitoring of the availability, uptake and successful completion
of enabling courses will assist in identifying whether the measure is effective
in achieving its stated objective of improving the progression of students with
social and educational disadvantages to higher education.
Eligibility of Australian permanent residents and New Zealand citizens to a
commonwealth supported university place
2.57
Schedule 3 of the bill seeks to provide that Australian permanent
residents and New Zealand citizens will no longer be eligible for commonwealth
supported higher education places.[17]
Permanent humanitarian visa holders and New Zealand Special Category Visa
holders who arrived in Australia as dependent children will remain eligible for
commonwealth supported places.[18]
2.58
A commonwealth supported place is partly subsidised by the Australian
government through the government paying part of the fees for the place
directly to the university. Students are also required to contribute towards their
study and they pay the remainder of the fee called 'student contribution
amount' for each unit they are enrolled in.
Compatibility of the measure with
the right to education
2.59
As set out above, article 13 of the ICESCR protects the right to
education including ensuring it is equally accessible and through the
progressive introduction of free higher education by every appropriate means.
2.60
The previous analysis stated that, by providing that Australian
permanent residents and New Zealand citizens will no longer be eligible for commonwealth
supported higher education places, the measure engages and limits the right to
education and specifically the progressive introduction of free higher
education. Australia's obligations with respect to the right to education apply,
regardless of citizenship status, to persons within Australia.
2.61
The statement of compatibility did not identify this measure as engaging
and limiting the right to education and accordingly did not provide an
assessment of whether the limitation is permissible.
2.62
The committee therefore requested the further advice of the minister as
to:
-
whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective;
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective;
-
whether alternatives to reducing higher education funding have
been fully considered; and
-
how the measure complies with Australia's obligation to use the
maximum of its available resources to progressively introduce free higher
education.
Compatibility of the measure with
the right to equality and non-discrimination (direct discrimination)
2.63
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights (ICCPR).
'Discrimination' under the ICCPR encompasses a distinction based on a personal
attribute (for example, race, sex or on the basis of disability),[19] which has
either the purpose (called 'direct' discrimination), or the effect (called
'indirect' discrimination), of adversely affecting human rights.[20]
2.64
As stated in the previous analysis, the proposed measure, by providing
that New Zealand citizens and Australian permanent residents are no longer
eligible for commonwealth supported places, appears to directly discriminate
against people on the basis of their nationality.
2.65
Differential treatment[21]
will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a
proportionate means of achieving that objective.
2.66
However, the statement of compatibility did not identify this measure as
engaging the right to equality and non-discrimination and accordingly did not
provide an assessment of whether the limitation is permissible or constitutes
unlawful discrimination.
2.67
The committee therefore requested the further advice of the minister as
to:
-
whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response
Right to education
2.68
In relation to the right to education, the minister's response states:
While this measure removes the Commonwealth subsidy that
these groups currently receive, the measure expands access to tertiary
education for New Zealand citizens and permanent residents of Australia by
providing access to HELP loans.
Currently, these students must pay for their education
upfront, which may be a significant limitation on their capacity to access
higher education. Under current arrangements, most Australian permanent
residents and most New Zealand citizens have faced inequalities in access to
higher education. They have had to pay upfront fees for tuition that their
Australian peers have been able to defer to a HELP loan.
While the Committee has specifically requested advice on the
removal of the [Commonwealth Supported Places] CSP for permanent residents and
New Zealand citizens, it cannot be considered without noting that this measure
also expands access to HELP loans.
2.69
As such the minister's response asks that the measure removing the
commonwealth subsidy be considered together with the measure granting access to
HELP loans. It is acknowledged that granting access to HELP loans may pursue
the legitimate objective of expanding access to higher education for New
Zealand citizens and Australian permanent residents. In this respect, the
minister's response provides some information about the likely impact of greater
access to HELP loans:
While it is not yet known how universities will respond in
terms of tuition fees, access to a HELP loan is likely to be the most important
factor for those New Zealand citizens and permanent residents who are unable to
afford upfront payment to undertake tertiary education. There is evidence that
tuition fees, when coupled with access to income contingent loans, do not act
as a disincentive to study. In this way, the overall measure expands the right
to access higher education.
2.70
However, it is unclear from the information provided whether or why
expanding access to HELP loans necessarily needs to be accompanied by the
removal of commonwealth subsidies for such students. While it is proposed to
give Australian permanent residents and New Zealand citizens access to HELP
loans, this group will have to pay fees (either upfront, or repaid over time)
that are substantially higher than Australian citizens.[22]
This aspect of the measure, which is a limitation on the rights of affected
persons to education and equality and non-discrimination, still needs to be
justified according to the criteria under international human rights law.
2.71
By treating the removal of the commonwealth subsidy together with the
expansion of the HELP scheme, the minister's response does not clearly provide
specific information about the objective of removing the commonwealth subsidy
or whether the removal addresses a pressing or substantial concern. It can be
accepted that expansion of the HELP scheme aims to expand access to higher
education. It appears from the minister's response that the objective of the
removal of the subsidy is 'budget repair' and 'financial sustainability', and
for this reason the choice was made to remove the subsidy and provide access to
HELP loans.
2.72
In this respect, the response notes in a conclusory way that:
This measure is reasonable and proportionate to both the
policy objectives of expanding access for permanent residents and New Zealand
citizens, and of creating a financially sustainable higher education system.
2.73
However, the response provides no detailed information about whether
budget repair or financial sustainability would provide a basis for justifying
the limitation on the right to progressively free higher education. The
position appears to be that the measure is argued to be proportionate on the
basis that affected students will not need to pay the substantially higher fees
upfront, but will be able to repay a HELP loan over time.
2.74
The response states that:
In formulating this measure, the Government considered policy
alternatives.
2.75
Beyond this statement, the response provides no information on what
alternatives were considered and whether maintaining both commonwealth subsides
while permitting access to HELP loans was a feasible option, as was previously
the case for Australian permanent residents and New Zealand citizens.[23]
2.76
Based on the information provided, it is not possible to conclude that a
measure which removes commonwealth subsidies and requires New Zealand citizens
and Australian permanent residents to pay substantially more for higher
education than Australian citizens is a permissible limitation on the right to
progressively free higher education.
Right to equality and
non-discrimination
2.77
In relation to the right to equality and non-discrimination the
minister's response acknowledges that the measure engages this right. In
relation to this right the minister's response states:
Under the current arrangements permanent residents and New
Zealand citizens have different entitlements to citizens of Australia.
Replacing subsidies with loans for most Australian permanent residents and New
Zealand citizens, as proposed by this Bill, alters existing arrangements in
order to expand access to higher education for these groups by removing financial
barriers. Despite the loss of subsidised tuition fees, access to higher
education for most Australian permanent residents and most New Zealand citizens
will be improved through the availability of HELP loans.
Furthermore, loan repayment arrangements do not discriminate
between Australian citizens, New Zealand citizens and Australian permanent
residents; they are identical.
2.78
While the proposed access to HELP loans will not discriminate between
Australian citizens, New Zealand citizens and Australian permanent residents,
this does not address the concern that the removal of the commonwealth subsidy
for New Zealand citizens and Australian permeant residents directly discriminates
against permanent residents and New Zealand citizens.
2.79
In relation to the right to equality and non-discrimination, the
minister's response appears to identify the objective of the removal of the
subsidy as 'savings' which are required:
...in order to ensure the long-term sustainability of
Australia's higher education system, and the policy objective of ensuring that
most permanent residents and most New Zealand citizens are able to access
higher education without the barrier of upfront fees.
2.80
However, no reasoning is provided as to how such savings are necessary
to support sustainability or whether alternative approaches were reasonably
available that did not discriminate in this manner.
2.81
The response does identify one relevant safeguard applying to certain
New Zealand citizens:
It is also important to note that a special cohort of New
Zealand citizens (who arrived here as children and have been long term
residents of Australia) will remain eligible for both Commonwealth subsidies
and all HELP schemes (including VET Student Loans). This Government introduced
this arrangement in 2016 and this measure preserves access for this cohort.
2.82
Despite this one safeguard, based on the information provided, it is not
possible to conclude that the measure is a justified limitation on the right to
equality and non-discrimination for the purposes of international human rights
law.
Committee response
2.83
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.84
The preceding analysis indicates that, based on the above
analysis and the information provided, it is not possible to conclude that the
measure is compatible with the right to the progressive introduction of free
higher education and the right to equality and non-discrimination.
Lowering repayment threshold for HELP debts
2.85
Schedule 3 of the bill lowers the current minimum repayment threshold
for HELP loans to $41,999 per annum (currently, the repayment threshold is
$55,000). It also introduces additional repayment thresholds and rates (1
percent at $42,000 and increasing to 10 percent on salaries over 119,882 per
annum).[24]
2.86
From 1 July 2019 repayment thresholds including the minimum repayment
amount will be indexed using the Consumer Price Index rather than Average
Weekly Earnings.[25]
Compatibility of the measures with
the right to education
2.87
As set out above, article 13 of the ICESCR protects the right to education
including ensuring it is equally accessible and through the progressive
introduction of free higher education by every appropriate means.
2.88
The Australian system of higher education allows students to defer the
costs of their education under a HELP loan until they start earning a salary
above a certain threshold. The previous analysis stated that the proposed
lowering of the repayment threshold engages and may limit the right to
education as it imposes payment obligations on those who earn lower incomes.
This may be contrary to the requirement under article 13 to ensure that higher
education is equally accessible and progressively free. Similarly, the proposed
change to indexation also engages and may limit the right to education as it
may increase the amount to be paid, relative to earnings, in the event that
growth in the Consumer Price Index exceeds growth in Average Weekly Earnings.
2.89
The statement of compatibility did not identify this measure as engaging
and limiting the right to education and accordingly did not provide an
assessment of whether the limitation is permissible.
2.90
The committee therefore requested the further advice of the minister as
to:
-
whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Compatibility of the measure with
the right to equality and non-discrimination (indirect discrimination)
2.91
As set out above, the right to equality and non-discrimination is
protected by articles 2 and 26 of the ICCPR, and includes indirect
discrimination.
2.92
The previous human rights analysis identified that the change in
indexation may have a disproportionate negative effect on women. On average,
women earn less over a lifetime of employment, are more likely to take time out
of the workforce to care for children and are more likely to be engaged in
part-time employment.[26]
As the previous analysis stated, where a person takes longer to repay HELP
debt, the change to indexation may result in increased levels of debt to be
repaid relative to earnings. The longer period that women, on average, take to
pay their HELP debt[27]
leads, consequently, to higher education costs than their male counterparts.
2.93
Reducing the minimum repayment income threshold for HELP debts to
$41,999 may also have a disproportionate impact on women, given that they are
more likely to earn less than men, and therefore more likely to be affected by
the reduction in the repayment threshold to cover those earning between $41,999
and $55,000.
2.94
The initial analysis noted that, where a measure impacts on particular
groups disproportionately, it establishes prima facie that there may be
indirect discrimination.[28]
Differential treatment (including the differential effect of a measure that is
neutral on its face)[29]
will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a
proportionate means of achieving that objective.
2.95
The statement of compatibility acknowledges that the measures engage the
right to equality and non-discrimination due to their disproportionate impacts
on women:
introduction of new HELP repayment thresholds, may be seen as
limiting the right to non-discrimination due to disproportionate impacts on
women and other low income groups.
The Government currently carries a higher deferral subsidy
from demographic groups that tend to have lower incomes. This includes women,
individuals in part-time work or individuals in low paid professions. As a
result, many of these individuals, including many women, will be making
repayments for the first time as a result of the introduction of the new, lower
thresholds. Addressing this income inequality, however, is not the role of the
higher education loans system.[30]
2.96
In this respect, it was noted that the statement of compatibility does
not provide a substantive assessment of whether the measure amounts to indirect
discrimination. To state that a negative impact on women results from income
inequality is not a justification of the measure – which has the potential to exacerbate
inequality – as a proportionate limitation on the right to equality and
non-discrimination.
2.97
Accordingly, the committee requested the further advice of the minister
as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response
Right to education
2.98
In relation to the right to education, the minister's response argues
that the measure does not limit the right to education, including ensuring
access to higher education and through the progressive introduction of free
higher education in article 13 of the ICESCR. In relation to the lower
repayment threshold, the minister's response states:
In terms of access to education, there should be no effect on
access based on the new repayment threshold. Eligible students will remain able
to defer their student contribution amounts or tuition fees via a HELP loan.
This includes individuals who earn more than the minimum repayment threshold.
Further, the new repayment threshold introduced by this Bill
remains above the national minimum wage ($35,000 for full-time workers), and
the lower repayment rate ensures that any impact is minimal.
2.99
In relation to the changes to the indexation of the repayment
thresholds:
Changes to the indexation of the repayment thresholds
similarly do not limit the right to access higher education and are not
retrogressive in terms of the introduction of free education. According to the
Grattan Institute, the AWE figure is distorted by several factors including
increasingly larger incomes due to a rise in professional occupations over
low-skilled occupations, and an ageing population staying longer in the
workforce with high salaries. As growth in CPI is slower than growth in AWE,
this results in people commencing repayments towards their HELP debt sooner.
This does not equate to people paying more for their education. As individuals
may begin repaying their debts more quickly, it may reduce the amount they
repay over the life of their HELP debt, as faster repayments means that there
is less debt to index each year.
Further, it should be noted that the growth in HELP
repayments has not kept pace with the growth in HELP lending. The rate of
spending on the HELP scheme is unsustainable and needs to be addressed. The
amount of HECS-HELP loans accessed has increased by around 75 per cent from
over $2.1 billion in 2008 to over $3.6 billion in 2013. Additionally, the
expansion of HELP to the vocational education and training sector has led to
VET FEE-HELP loans increasing from $0.03 billion [in] 2009 to over $1.7 billion
in 2014. From 2008-09 to 2012-13 HELP repayments have only increased by 35 per
cent (noting the inherent time lag between incurring the loan and commencing
repayments).
The savings arising from this measure will help reduce the
unsustainable growth in the HELP scheme, and ensure that it remains available
for future generations of students.
Any perceived limitation on the right to education, including
the progressive introduction of free higher education, is reasonable, necessary
and proportionate to the objective of ensuring that the higher education loan
scheme remains sustainable.
2.100
Based on the information provided, the measure may be compatible with
the right to education, noting in particular that some evidence has been cited
that the measures will not limit access to education or act as a disincentive
to education, and noting the justification for the reliance on CPI indexation
instead of Average Weekly Earnings.
Right to equality and
non-discrimination
2.101
In relation to the right to equality and non-discrimination, the
minster's response restates information provided in the statement of
compatibility which acknowledges that the measures may have a disproportionate
negative effect on women:
Women, and other low-earning demographic groups, may
represent a disproportionately large number of those required to make HELP
repayments for the first time as a result of the introduction of the new, lower
threshold. This may present an indirect limitation on the right to
non-discrimination.
2.102
However, as occurred in the statement of compatibility, instead of
assessing whether this disproportionate negative effect is permissible the
minister's response merely states:
Due to the income-contingent nature of the HELP scheme, those
who earned less than the minimum repayment threshold have not previously been
required to make repayment obligations. Any disproportionate impact on women as
a result of this measure is the result of broader and complex social and
economic factors that it is not within the scope of a student loan scheme to
address or mitigate.
2.103
However, as noted in the initial human rights analysis, to state that a
negative impact on women results from income inequality is not a justification
of the measure, which has the potential to exacerbate inequality. Rather, where
there is evidence that a measure may have a disproportionate negative effect on
women it shows prima facie that the measure itself may be
discriminatory. In these circumstances, the measure must serve a legitimate
objective, be effective to achieve that legitimate objective and be a
proportionate means of achieving that objective in order to be compatible with
the right to equality and non-discrimination. International human rights law
recognises that it is fundamentally the role of government to address existing
inequalities and ensure that these are not exacerbated through particular
measures.
2.104
The minister's response further argues that women make up the majority
of higher education students, graduates and HELP debtors so that any change to
the repayment amount would disproportionally affect them. While this may also
be correct, it also does not directly address whether a measure which has a
disproportionate negative effect on women, by virtue of its effect on those on
lower incomes, is justifiable as a matter of international human rights law.
2.105
While not framed in these terms, the minister's response nevertheless
provides some information that may go towards whether the limitation is
permissible:
...this measure directly contributes to improving the
sustainability of HELP and ensuring it remains a viable option for students in
the future. HELP expenses, which consist mainly of debt not expected to be
repaid and the deferral subsidy from the concessional interest applied to HELP
loans, are estimated to be $2.2 billion in 2017-18.
This measure is expected to bring approximately 183,000 new
individuals into the repayment stream, and is expected to increase HELP
repayments and reduce the amount of outstanding debt not expected to be repaid.
Any limitation on the right to non-discrimination as a result
of the measures contained in Schedule 3 is reasonable, and proportionate to the
policy objective of creating a sustainable higher education system, and to
ensure that higher education remains accessible.
2.106
Aside from stating the objective of the measure, no further
justification is provided as to whether the measure is proportionate. While
acknowledging that the measure pursues the objective of improving the ongoing
sustainability of HELP loans, the minister's response provides insufficient
basis to conclude that the measure is compatible with the right to equality and
non-discrimination.
Committee response
2.107
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.108
The preceding analysis indicates that the measure may be
compatible with the right to education. However, based on the above analysis
and the information provided, it is not possible to conclude that the measure
is compatible with the right to equality and non-discrimination.
Mr Ian Goodenough MP
Chair
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