Australian Education (Required Information – Student with Disability Loading Settings Review) Determination 2021

The Determination uses a small set of technical concepts. Each is explicitly connected to the Australian Education Regulation 2013 or to instrument-specific definitions.

• Nominated person. Defined in the Determination as personnel of PricewaterhouseCoopers Consulting engaged to undertake the Review (s 4). The nominated person is the direct recipient of the information required by the Determination (s 5(2)). The definition makes clear the reviewer is a private-sector contractor engaged "to undertake the Review", not an unspecified independent body.

• Review. Defined as the Student with Disability Loading Settings Review conducted on behalf of the department (s 4). The Review is the undertaking for which the nominated person has been engaged. The Determination specifies the Review as the purpose for which the required information is collected (s 5).

• Levels of adjustment and student with disability. The Determination uses these terms but does not define them; it notes they are defined in the Australian Education Regulation 2013 (s 4 note: levels of adjustment, see section 17A; student with disability, see section 4). That cross-reference locates the substantive meaning of these core terms in the Regulation, not in this Determination.

• Cost information. The Determination prescribes two discrete cost reporting requirements (s 5(1)(a)-(b). First, school-level aggregations: for each level of adjustment, the cost of the adjustments provided for students with disability at the school. Second, student-level reporting where a student receives multiple adjustments: the cost of those combined adjustments for that student. The example attached to s 5(1) clarifies that adjustments may include specialised equipment.

• Approved authority for a school nominated by the department. The obligation to provide information is placed on the approved authority for any school that the department nominates for the Review (s 5(1)). The Determination therefore selects the entity responsible for compliance (approved authority) and leaves selection of the target schools to departmental nomination.

• Delivery mechanism and timetable. The Determination specifies two mandatory acts to deliver the information: completing a survey provided by the nominated person and participating in any school visit conducted by the nominated person (s 5(2)(a)-(b)). The date by which the information must be provided is 30 June 2022 (s 5(2)).

These concepts establish an information flow from selected schools and their approved authorities to a named external reviewer, with precise content requirements that combine school-level and student-level costing. The instrument does not specify technical costing methodologies, formats for the survey responses, protocols for school visits, or data-protection requirements. The substantive legal meaning of "levels of adjustment" and "student with disability" must be read in conjunction with the Regulation (s 4 note).

The Determination narrows its immediate impact to a defined set of actors. The affected parties are:

• Approved authorities of schools nominated by the department. The statutory obligation to provide information is expressly placed on the "approved authority for a school nominated by the department" (s 5(1)). That term is the legal entity that must carry out the duties set out in the Determination. The instrument therefore affects governing bodies, education authorities, school boards, or other entities holding approved authority status for the nominated school, as that role exists under the Regulation.

• The nominated person, i.e. personnel of PricewaterhouseCoopers Consulting engaged to undertake the Review (s 4). The Determination specifies PricewaterhouseCoopers Consulting personnel as the named private-sector recipient and collector of the specified information. That firm will receive the survey returns and conduct school visits pursuant to the instrument (s 5(2)).

• The department that nominates schools and engages the nominated person. The Review is conducted "on behalf of the department" (s 4). While the department is not the statutory addressee of the s 5 obligations, its role in selecting nominated schools and engaging the nominated person gives it a decisive role in who is affected and how the Review is implemented.

• Schools and students with disability at nominated schools. The content obligation requires data about "adjustments provided for students with disability at the school" and "for a student receiving more than one adjustment, the cost of these adjustments" (s 5(1)). This translates to an effect on schools that provide adjustments and potentially on the record-keeping practices relating to those students. The Determination does not limit the nature of the adjustments to particular categories; the example in s 5(1) states that adjustments include measures such as specialised equipment.

• Internal staff and contractors responsible for data and finance. The practical task of assembling costing information and participating in surveys and visits will fall to school administrative staff, finance officers, and those responsible for student support services. The Determination mandates completion of a survey and participation in visits by a private consultant, which are actions that require time and administrative resources (s 5(2)).

• Parties concerned about data handling and privacy. Although the Determination does not set data-protection rules, naming a private consultant as the nominated person and requiring student-level cost reporting where a student has multiple adjustments creates a concrete intersection with data privacy, record-keeping, and information-sharing practices. The instrument itself does not specify anonymisation or handling requirements.

The Determination does not impose obligations on all schools generally. Its scope is conditional on departmental nomination of a school. It therefore concentrates obligations on a subset of approved authorities chosen by the department, and places the nominated person (PricewaterhouseCoopers Consulting personnel) as the direct recipient of the information. The instrument does not specify any compensation, reimbursement, or resourcing to approved authorities for the costs of participation.

Duties imposed by the Determination are narrowly specified. Rights, where implied by the text, are limited or left to the enabling Regulation and to departmental practice.

Key duties:

• Provide defined cost information. Approved authorities for a school nominated by the department must provide, for each level of adjustment, the cost of adjustments provided for students with disability at the school, and for any student receiving more than one adjustment, the cost of those adjustments (s 5(1)(a)-(b)). This creates two discrete information duties: a school-level, per-level-of-adjustment costing; and a per-student costing for students with multiple adjustments.

• Provide the information to the nominated person by a specified deadline. The information must be provided to the nominated person by 30 June 2022 (s 5(2)). The Determination sets a fixed temporal boundary for compliance.

• Use the specified delivery methods. The mechanism for provision is specific: by completing a survey provided by the nominated person and by participating in any school visit conducted by the nominated person (s 5(2)(a)-(b)). The duties therefore include both completion of a written instrument and making staff available for on-site or virtual visits as arranged by the nominated person.

Key implied rights and limits:

• Right to statutory grounding and delegation. The Determination is made under recognised provisions of the Australian Education Regulation 2013 (s 3) and therefore operates within the statutory framework that allows the department to request information. The approved authority’s obligation arises from that delegated instrument.

• No right to withhold specified information in the Determination itself. The Determination mandates the provision of the information; it does not set out carve-outs or exemptions in its text. If an approved authority believes a legal ground exists to withhold information (for example, privacy obligations or other legal constraints), the Determination does not resolve that conflict on its face. The approved authority would need to rely on the Regulation or other law for any statutory immunity or exception, but the Determination does not include such an exception.

• No procedural detail for format, cost methodology, or data handling. The Determination does not prescribe a costing methodology, a format for the survey returns, or data handling standards. This gives the nominated person and the department practical control over how the information is collected and processed. For example, the survey instrument is not set out in the Determination; the nominated person will provide it (s 5(2)(a)). Approved authorities therefore face an obligation to provide the required content but little guidance in this instrument on how to produce comparable, auditable cost data.

• No explicit enforcement provisions. The Determination itself does not specify penalties or enforcement mechanisms; it is made under the Regulation (s 3). Enforcement, sanctions, or follow-up are not set out in the Determination and must be sought in the enabling law.

In sum, the Determination creates clear duties to produce specific cost information and to engage with a private-sector reviewer through survey responses and school visits, by a date certain. The instrument leaves several implementation features , costing methodology, data format, confidentiality and enforcement , to the department and the nominated person or to the enabling Regulation.

The Determination does not itself enumerate penalties, sanctions, or enforcement procedures. The text expressly identifies its statutory source as subsection 52(3A) and paragraph 58A(2)(e) of the Australian Education Regulation 2013 (s 3), but does not reproduce or paraphrase any enforcement powers that those provisions may contain. The Determination therefore performs a directive function, not an enforcement codification.

What the Determination does show about enforcement risk and mechanisms:

• Reliance on the Regulation for statutory force. Because the Determination is made under the Regulation (s 3), the legal obligation to provide the information and any enforcement consequences would be grounded in the Regulation rather than in the Determination text itself. Practitioners must consult the cited provisions of the Australian Education Regulation 2013 to determine whether failure to comply attracts civil penalties, criminal offences, administrative sanctions, or other departmental consequences. The Determination contains no express penalty clause.

• Practical enforcement levers likely lie outside the Determination. In administrative practice, an approved authority that does not provide requested information might face departmental follow-up, withholding of approvals, conditions on funding arrangements, or other administrative consequences derived from the broader regulatory scheme. These possible levers are not stated in the Determination; they would be exercised under the enabling legislation or other departmental powers.

• No internal dispute resolution or appeal route in the Determination. The Determination does not set out a process for a school or approved authority to object to nomination, to seek an extension, to request confidentiality undertakings from the nominated person, or to contest a demand for information. Those procedural protections or remedies, if they exist, would be found in the Regulation, departmental policy, or standing contract terms between the department and the nominated person.

• Enforcement of the reviewer's conduct is not addressed. The Determination names PricewaterhouseCoopers Consulting personnel as the nominated person (s 4). It does not set out oversight, confidentiality, non-disclosure, or conflict-of-interest obligations for the nominated person. Any contractual constraints on the nominated person will be in the engagement contract between the department and the firm, not in this Determination.

For practitioners advising on compliance, the absence of penalties or enforcement detail in the Determination means the next step is legal triage: consult the Australian Education Regulation 2013 for the legal consequences of non-compliance with information requests made under the cited provisions, review departmental correspondence about nomination and obligations, and inspect the engagement contract between the department and PricewaterhouseCoopers Consulting for data-handling and conduct terms applying to the nominated person.

The Determination is an instrument made under, and therefore interdependent with, the Australian Education Regulation 2013. It expressly cross-references definitions and the statutory authority in that Regulation (s 3; s 4 note). Key interactions are:

• Definitions in the Regulation govern substantive scope. The Determination uses the terms "levels of adjustment" and "student with disability" and directs the reader to the relevant sections of the Regulation for their definitions (s 4 note: levels of adjustment, see section 17A; student with disability, see section 4). The legal meaning and any thresholds for who qualifies as a student with disability, and what constitutes various levels of adjustment, are therefore determined by the Regulation. The Determination supplies only the information-collection obligation; it relies on the Regulation for substantive categorisation.

• Statutory power to require information. The Determination is made under subsection 52(3A) and paragraph 58A(2)(e) of the Regulation (s 3). Those provisions are the legal source that allow the department to require additional information. Any constraints, procedural rules, or remedies that apply to requests under those provisions will shape the legal character of the Determination. The Determination does not, on its face, expand or contract the powers in the Regulation; it exercises those powers to require the specific Schedule of information.

• Administrative contracting and procurement law. The nominated person is defined as personnel of PricewaterhouseCoopers Consulting engaged to undertake the Review (s 4). That engagement is an administrative contracting decision of the department. The procedural and legal consequences of private contractors handling government-collected data intersect with procurement rules, contract law, and possibly public sector data-sharing policies. The Determination does not specify contract terms; those will exist outside the Determination in the contract between the department and the nominated person.

• Privacy and information-handling laws. The Determination requires cost information that may be aggregated or student-level (s 5(1)(a)-(b)). Where student-level information is required , specifically "for a student receiving more than one adjustment, the cost of these adjustments" , there is a potential interaction with privacy and data-protection regimes. The Determination does not set out privacy protections, de-identification requirements, or data-security obligations. Those obligations remain in broader privacy laws and departmental policies. Approved authorities must therefore consider the Information Privacy Principles and relevant privacy legislation when providing data to a private consultant under this Determination.

• Funding and accountability relations. The Determination crosses into the policy domain of the Student with Disability Loading. Information collected under this Determination is for a Review of loading settings (s 4). The outputs of that Review may be used to inform policy, funding arrangements, or subsequent regulatory changes. The Determination does not itself alter funding entitlements or apply new funding rules, but the data it collects may be used to shape future laws, regulations, or departmental funding decisions.

• Administrative law remedies. The Determination creates an administrative step in the Review. Approved authorities that are subject to nomination, or that object to the way the Review is conducted, may have administrative law remedies in respect of departmental actions (for example, judicial review) depending on the circumstances. The Determination itself does not create a statutory appeal right.

Practitioners should therefore read the Determination together with the cited sections of the Australian Education Regulation 2013, departmental communications about the Review and nomination, the contract between the department and PricewaterhouseCoopers Consulting, and applicable privacy and procurement law. The Determination establishes a narrow, instrument-specific interaction with these broader legal regimes but leaves substantial detail to them.

The endnotes attached to this compilation record the legislative history and amendments for the Determination. Key dates and amendments are:

• Initial registration and commencement. The Determination was registered as the Australian Education (Required Information - Student with Disability Loading Settings Review) Determination 2021 on 2 July 2021 (F2021L00952) and commenced on 3 July 2021. This is recorded in Endnote 3 under "Legislation history".

• Subsequent amendment. The Determination was amended by the Australian Education (Required Information - Student with Disability Loading Settings Review) Amendment (Information Date) Determination 2021, registered 28 October 2021 (F2021L01469) and commenced 29 October 2021 (Endnote 3). The compilation date shown in the instrument is 29 October 2021 and it includes amendments up to F2021L01469.

• Provision-level changes noted in Endnote 4. The amendment history table lists that section 5 was amended (s 5 am (see F2021L01469)). Section 2 was also affected by the repeal of LA s 48D (s 2 rep LA s 48D), although the Determination as compiled starts with s 1 and s 3; the endnote records the technical amendment history.

• Compilation information. The front page of the instrument notes that this is Compilation No. 1 and that the compilation date is 29 October 2021, including amendments up to F2021L01469. The endnotes include standard material about uncommenced amendments, modifications, and self-repealing provisions; none of those qualifications alter the textual obligations set out in the Determination as compiled.

Practical implications of the amendment history:

• The Determination’s mandating of an information date (s 5(2) specifies 30 June 2022) and the amendment dated 28 October 2021 suggest the instrument’s content was adjusted after initial registration. The endnotes indicate s 5 was the provision amended by F2021L01469, which is the provision containing the core information obligations and the information date. Practitioners should consult the specific amending instrument F2021L01469 for the precise textual change to s 5 if it is material to compliance.

• As with any delegated instrument, the compilation and amendment notes are necessary to trace the current operative text and any transitional or application provisions that may accompany an amendment. The Determination’s endnotes refer readers to the Legislation Register for details of uncommenced amendments and any application, saving or transitional provisions not included in the compilation.

In short, the Determination entered into force in July 2021, was amended in October 2021 (affecting s 5), and the compilation available is current to 29 October 2021. For any post-October 2021 changes, a practitioner must consult the Legislation Register.

The compiled Determination and its endnotes contain no records of litigation under the instrument. The text does not cite any judicial decisions, and the endnotes do not record any case history. The Determination is an administrative instrument that directs information-gathering for a policy Review; it is not itself an adjudicative or punitive provision.

What is present in the source is a clean legislative history, comprised of the registration and amendment dates noted in Endnote 3 and the provision-level amendment notation in Endnote 4. There are no reported court proceedings, no recorded challenges to the Determination in the compilation, and no citations to judicial interpretation of its terms within this text.

If litigation were to arise, likely avenues would be:

• Judicial review of the departmental nomination process or the legality of the requirement to provide information if an approved authority alleged the department exceeded its statutory powers. Any such challenge would require examination of the enabling provisions in the Australian Education Regulation 2013 and the administrative facts surrounding nomination and the information demand.
• Privacy or data-protection claims if an approved authority or an affected person alleged unlawful disclosure or misuse of personal information by a nominated person. The Determination does not specify data-handling protocols; contractual and statutory privacy regimes would determine potential liability.
• Contractual or procurement disputes in respect of the department's engagement of PricewaterhouseCoopers Consulting, although such disputes would be between the department and the private contractor and not about the Determination’s text.

None of these pathways are evidenced in the source material. Practitioners seeking litigation history beyond this Determination should search case databases and the Federal Court and Administrative Appeals Tribunal records for any challenges relating to the Review or to information requests made under the cited provisions of the Regulation.

The Determination is short and tightly framed, but there are several points where its limited text creates practical pitfalls:

• The nominated person is a named private firm. The Determination defines nominated person as personnel of PricewaterhouseCoopers Consulting engaged to undertake the Review (s 4). That means a private-sector contractor will receive the specified information. Approved authorities should not assume the recipient is an internal departmental officer. The differential legal status of a private contractor, as opposed to a government employee, affects data-sharing, confidentiality arrangements and potential contract enforcement. The Determination does not include protections or obligations for the nominated person.

• Student-level reporting requirement can be sensitive. The instrument requires, for "a student receiving more than one adjustment, the cost of these adjustments" (s 5(1)(b)). That is a requirement to report combined costs for particular students with multiple adjustments. The Determination does not specify whether the data must be de-identified, aggregated, or provided in an identifiable form. This creates potential privacy compliance issues and uncertainty around the permissible scope of disclosure to a private consultant.

• No costing methodology or format is specified. The Determination requires the cost of adjustments by level and per-student for multiple adjustments (s 5(1)) but does not prescribe a costing methodology, a timeframe, or whether costs should be reported as incremental, attributable, or allocated overhead. Approved authorities must perform cost calculations without methodological guidance, and different schools might use different costing conventions, reducing comparability unless the survey instrument provides methodological instructions. The survey is to be provided by the nominated person (s 5(2)(a)), making the data-collection instrument the de facto determinant of format and method.

• The obligation applies only to nominated schools. The Determination imposes duties on "the approved authority for a school nominated by the department" (s 5(1)). This is not a universal mandate across all schools. Approved authorities must therefore confirm whether their school has been nominated. However, the Determination does not set a statutory notice period for nomination within the text; administrative notice may come in departmental correspondence.

• Fixed information date and short turnaround risk. The Determination sets a firm date , 30 June 2022 , for delivery of the required information (s 5(2)). Depending on when a school is nominated and when the survey is issued, approved authorities may face a compressed timeframe to assemble detailed cost data, especially where financial systems or record-keeping practices are not set up to provide per-level or per-student costing.

• School visits are mandatory. The Determination requires participating in "any school visit conducted by the nominated person" (s 5(2)(b)). Approved authorities must make staff and possibly premises available for visits. The Determination does not constrain the nature of those visits (for example, whether site access is physical, remote, or the breadth of personnel to be interviewed).

• No enforcement detail in the instrument. Because the Determination omits enforcement mechanisms (s 3 indicates the Regulation provides authority), an approved authority cannot find in the Determination what happens in the event of non-compliance, or whether extensions or exemptions can be granted. That uncertainty can complicate risk assessments for disclosure.

• Contractual and procurement interactions are outside the instrument. The Determination does not disclose the contracting terms that govern the nominated person's handling of data, conflicts of interest, or confidentiality obligations. Approved authorities seeking assurances about data protection, use, and retention must obtain those from departmental correspondence or the contract and not from the Determination.

• Dependence on external definitions. The Determination uses "levels of adjustment" and "student with disability" but points to the Regulation for definitions (s 4 note). Practitioners must consult the Regulation to determine which students and adjustments are within scope. Resistance or confusion can occur if local practices diverge from the Regulation’s definitions.

These are operational and legal friction points directly implied by the Determination’s text. None are resolved within the Determination itself; they require the approved authority to seek further information from the department, to check the survey instrument and contractual terms with the nominated person, and to verify applicable data protection law.

The Determination sets a specific procedural path for compliance. Below are concrete steps an approved authority should take, grounded in the instrument’s requirements and the procedural gaps it leaves open.

1. Confirm nomination status and scope.

   • Check departmental correspondence to confirm whether the school has been nominated under the Review and the exact scope (s 5(1)). The Determination applies only to schools that the department nominates.

2. Identify responsible persons and governance.

   • Designate an internal lead (senior administrative officer or finance manager) to coordinate the response. The Determination places the duty on the approved authority for the nominated school (s 5(1)); therefore, centralised coordination is necessary.

3. Obtain the survey instrument promptly.

   • The Determination requires completion of "a survey provided by the nominated person" (s 5(2)(a)). Request the survey instrument from the nominated person or department as soon as a nomination is confirmed. Review the survey for required fields, data format, and any methodological guidance.

4. Map definitions to local practice.

   • Consult the Australian Education Regulation 2013 for the definitions of "levels of adjustment" (s 17A) and "student with disability" (s 4), as noted in the Determination (s 4 note). Map local support categories and record-keeping to those definitions to ensure the data requested corresponds to the Regulation’s meaning.

5. Prepare costing methodology and documentation.

   • Because the Determination does not prescribe a costing method, establish an internal methodology to calculate:
     • The cost of adjustments provided at the school for each defined level of adjustment (s 5(1)(a)).
     • For any student receiving more than one adjustment, the combined cost of those adjustments for that student (s 5(1)(b)).
   • Document assumptions, allocation bases (direct costs versus apportioned overhead), time periods covered, and supporting invoices or payroll entries so the survey responses are auditable.

6. Identify affected students and supports.

   • Generate a list of students who receive adjustments and categorise their supports by the Regulation-defined levels of adjustment. Identify those students who receive more than one adjustment and calculate combined costs for those students in accordance with your documented methodology (s 5(1)).

7. Plan for school visit participation.

   • The Determination requires participation in "any school visit conducted by the nominated person" (s 5(2)(b)). Prepare a schedule, identify staff who can attend, collate documents or records likely to be requested, and ensure facilities or remote access capabilities are available.

8. Address privacy and data-protection concerns.

   • Because the Determination requires student-level cost data in some cases (s 5(1)(b)), clarify with the department and the nominated person how data will be handled, whether de-identification is acceptable, and what contractual or statutory protections exist. Seek written assurances on confidentiality, retention, and permitted uses. If in doubt, obtain legal advice referencing applicable privacy laws.

9. Meet the deadline but seek extensions if necessary.

   • The due date in the Determination is 30 June 2022 (s 5(2)). If the timeline is impracticable given nomination timing or data-assembly needs, communicate early with the nominated person and the department to request an extension or staged delivery. Document all communications.

10. Preserve records and create an audit trail.

    • Maintain a copy of the survey return, internal working papers, costing calculations, and correspondence with the nominated person and the department. This supports accountability and will be vital if queries arise or if the Review requests clarifications.

11. Coordinate with system or sector authorities.

    • If the school is part of a larger system (for example, a diocesan authority or a state education department), coordinate across the system to ensure consistent costing approaches and to avoid duplicative effort. The Determination places the duty on the approved authority for the nominated school (s 5(1)), but system-level support may be necessary.

12. Check contract terms with the nominated person.

    • Although the Determination does not disclose the contractual arrangement, request copies of any data-sharing agreements, confidentiality undertakings, or terms that govern the nominated person’s conduct so the approved authority can assess legal risk.

Following these steps aligns with the Determination’s specified requirements: providing per-level school costs and per-student multiple-adjustment costs to the nominated person via the survey and school visit by the date specified (s 5(1)-(2)). The absence of prescriptive methodology in the Determination means that approved authorities should build defensible, documented costing procedures and seek clarifying instructions from the nominated person and the department where necessary.