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Legislative Council
Education and Training Reform Amendment (Funding of Non-Government Schools) Bill 2014

12 February 2015
Statement of compatibility


Mr HERBERT (Minister for Training and Skills) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter act'), I make this statement of compatibility with respect to the Education and Training Reform Amendment (Funding of Non-Government Schools) Bill 2014.

In my opinion, the Education and Training Reform Amendment (Funding of Non-Government Schools) Bill 2014 (the bill), as introduced to the Legislative Council, is compatible with the human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement.


The bill proposes amendments to the Education and Training Reform Act 2006 (ETR act) to provide a transparent approach to funding across the education system, with the primary goal of meeting student needs.

The bill will secure recurrent funding for non-government schools by amending the ETR act to expressly legislate the minimum linkage percentage of 25 per cent to be allocated to the non-government schools sector. This is to ensure that growth in per student state funding for government schools will also flow through to growth in state funding for non-government schools, which only occurs through administrative arrangements at present.

The bill includes general principles to determine particular recurrent funding lines on which the 25 per cent is applied, called 'basket of goods'; as well as categories of funding which are included and excluded from the basket.

The bill establishes the general principle that will be applied when determining the 'recurrent funding' which is the funding provided by the state in respect of students in government schools (that is, the 'basket of goods'). The broad principle is that it is funding appropriated by the state that directly supports the teaching, learning and welfare of students attending government schools. The bill also clarifies that various categories of funding that are excluded from the 'recurrent funding' amount. For example, early childhood development funding, higher education funding, capital property items, and funding from the commonwealth passed onto government schools by the state. In addition, the bill specifies the special and specialist schools whose funding is excluded from the 'recurrent funding' amount (such as the Distance Education Centre of Victoria, language schools and deaf facilities attached to government schools).

The bill will enable the minister to further expand on those categories of funding that may be included or excluded from the 'recurrent funding' by regulations or by ministerial order. Furthermore, the bill ensures a needs-based allocation of funding by providing that the minister can allocate funding having regard to the individual needs of schools and students.

The bill will also establish a School Policy and Funding Advisory Council (advisory council) to advise the minister on regulatory, policy and funding issues for all school sectors. The advisory council will comprise of representatives of the government and non-government school sectors with an option for the minister to also appoint, from time to time, any other person(s).

The bill will empower the minister to place any reasonable conditions on funding provided to non-government schools. As an accountability measure, the bill will allow the minister to require a non-government school and/or its organising body to provide a report as to the application of funding provided. Both of these measures require the minister to take account of the advice of the advisory council.

Finally, the bill will include a review mechanism where the proposed provisions relating to funding for non-government schools will be reviewed by the minister in 2018, in consultation with the advisory council.

Human rights issues

Human rights protected by the charter that are relevant to the bill

The following charter act rights are relevant:

the right to recognition and equality before the law, as set out in section 8 of the charter act; and

the right to protection of families and children, set out in section 17 of the charter act.

Are the relevant charter rights actually limited by the bill?

Recognition and equality before the law

Section 8 of the charter act is relevant to clause 4 of the bill. Section 8 of the charter provides that a person has the right to recognition as a person before the law, and the right to enjoy his or her human rights without discrimination.

Clause 4 of the bill provides for recurrent funding for non-government schools and ensures that they receive a minimum of 25 per cent of the average per student state recurrent funding of students in government schools.

Currently funding for non-government schools in Victoria occurs through administrative arrangements rather than legislation. Actual funding to non-government schools has been above 25 per cent since 2012 due to a decision to maintain funding at previous levels (2012–13) and the Heads of Agreement between the Commonwealth of Australia and the State of Victoria on National Education Reform funding requirements for 2014.

The objective of legislating a percentage is to provide certainty for the non-government schools sector over the minimum total amount of funding that will be provided by the state. Conversely it is arguable that the proposed bill effectively benefits students at non-government schools.

As a general rule, section 8 is to be considered when a policy draws a distinction between people or groups based on one or more of the protected attributes in the Equal Opportunity Act 1995 (Vic) (EOA) where this may result in less favourable treatment to some people or groups.

The distinction that may be drawn is between government and non-government school students. This distinction occurs because of parental choice of schools and is not based on any attribute protected by the EOA. Therefore, there is no discrimination within the meaning of section 8 of the charter. Furthermore, the distinction drawn between government and non-government schools for the purposes of funding arrangements does not affect enjoyment of any of the substantive rights in the charter. Therefore, the proposed bill does not engage or limit the right of a person to enjoy his or her human rights without discrimination.

Therefore, in my view, the proposed bill is compatible with the right of a person to enjoy his or her human rights without discrimination.

Protection of families and children

Section 17(2) of the charter act provides that every child has the right, without discrimination, to protection that is in his or her best interests and is needed by reason of being a child.

The ETR act provides a legislative framework for a quality education system in Victoria. The general purposes of the ETR act are beneficial, in that it provides a framework for the provision of education, instruction and training, to Victorian students and the broader community. Many of the measures within the ETR act are protective measures that operate to ensure the delivery of education services in the interests of students and the community. The ETR act operates to create an educational environment that protects children and students and that promotes their health, safety and wellbeing.

In this sense, ETR act generally supports the protection of families and children (section 17 of the charter). Accordingly, I consider the proposed bill, which amends the ETR act to enable funding for non-government schools, is clearly related to this purpose, and is consistent with and further supports the rights protected by section 17 of the charter.

Hon. Steve Herbert, MLC
Minister for Training and Skills