Earlier this year the government look set to impose hard caps on international student numbers. In March Parliament passed legislation creating the Australian Tertiary Education Commission, with one of its functions to allocate a ‘maximum number’ of international student commencements. This would have been the government’s second attempt at caps, after its first fell victim to a surprise Coalition-Green Senate alliance in 2024.
As I reported in The Koala in January, this function lacked enforcement mechanisms. But it foreshadowed further legislation which, I expected, would add penalty provisions.
To my surprise, that is not happening. A bill introduced into Parliament in late June adds detail about how ATEC will allocate international student commencements. But it also deletes the word ‘maximum’ from the original legislation. It does not create any power to suspend visa processing for providers that reach their allocation, as the 2024 bill did. It imposes no financial penalty for exceeding an allocation, unlike the student contribution confiscations the same bill proposes for universities exceeding their ATEC-approved number of Commonwealth supported places.
What we are left with is something similar to the current national planning level allocations. The processes will change, but the main consequence of enrolling commencing international students beyond an allocation will remain slower visa processing, not an absolute limit on numbers.
As now – with a change of name from ‘national planning level’ – the minister will set an ‘international allocation pool’ of higher education international student commencements for the following year. He is not required to consider any factors or consult any persons or organisations in setting this number. Unlike the consultation mandated elsewhere in the ATEC legislation, not even the immigration minister must be consulted – although behind the scenes this will surely happen.
The bill sets no date by which the minister must make his decision. It was 1 September in the 2024 bill. It is proposed as 30 June for the equivalent domestic student pool. The apparent reason for no deadline is so the minister can vary the allocation pool after it is made. The bill also allows for the domestic student pool to be changed, but only to be increased.
The current international student planning level system also lacks formal due dates and guarantees that allocations, once made, won’t be changed. But the bill signals a policy intent to keep the allocation flexible for the minister, with corresponding uncertainty for providers.
Once the minister has determined the commencing pool’s size ATEC decides how to distribute it between providers.
The minister can give ATEC a list of matters it either must comply with or must take into account in its decisions. This is likely to include priorities already in place, such as student housing and engagement with Southeast Asia.
The minister can also specify the kind or kinds of provider to which ATEC can make an allocation. Perhaps this is an implied threat against unfavoured providers, such as for-profit providers, those with a single source country, or those offering courses the government doesn’t like.
ATEC can set a method for determining allocations. A practice of using the previous year’s allocation is one possible method, as is some formula-driven allocation adjustment. In making an allocation, ATEC must take into account whether a previous allocation was exceeded. For the first annual allocation, ATEC must consult universities but not other higher education providers.
If the minister varies the allocation down he can also instruct ATEC on what to take into account during implementation. In these cases, ATEC must consult with all affected providers before making its decision. Explanatory materials issued with the bill suggest that the power to vary is to ensure that allocations reflect demand. This implies a ‘use it or lose it’ approach, but nothing in the bill restricts varying for other reasons.
For providers generally, as now, the main practical implication of the ATEC allocations will be visa processing priority. ATEC can punish providers with a lower allocation, which in turn will mean slow visa processing starts earlier in their recruitment phase. But this is not a hard cap and eventually additional visa applications will be processed.
ATEC’s main power is over domestic Commonwealth supported rather than international students. It will set the number of Commonwealth supported places at each public university. It could deny a university exceeding its international student target additional Commonwealth supported places. But that risks ATEC not meeting its own targets for skills supply, equity group participation and overall educational attainment.
In the end, ATEC’s power over international student allocations is perhaps best seen as bureaucratic tidying up. While negotiating mission-based compacts with universities ATEC must discuss their general activities and direction. International education is too important to be left out of these discussions. The current bill aligns responsibilities in a more logical way, moving aspects of international education policy from the Department of Education to ATEC.
What the ATEC allocation bill proposes is nevertheless unsatisfactory. It gives the minister and ATEC high levels of discretion with little guidance or constraint on how this is used. This makes planning for the future difficult and investment unwise. The most we can say in its favour is that it could have been worse.
Andrew Norton is a Professor of Higher Education Policy at the Monash Business School
A discussion of this issue with reference to specific legal provisions is here.
