The Government introduced the Universities Accord (Opening the Doors of Opportunity) Bill into Parliament last week, proposing two major reforms to Australia’s higher education system and establishing a legislative framework under which the Australian Tertiary Education Commission (ATEC) would allocate international student places.
The Bill is the seventh piece of legislation that has been introduced to implement the Universities Accord and principally deals with implementing two major reforms, Managed Growth Funding and Needs-based Funding.
Minister to determine allocation pool
The amendments establish the legislative framework that would apply if the Minister decides to set an overall number of international student commencements, called an “international allocation pool determination”.
Under the proposed arrangements, the Minister would determine the size of the pool and also set any additional matters ATEC must comply with when distributing places to higher education providers. These may include the kinds of ESOS registered higher education providers that may receive allocations and the matters ATEC must take into account when making them.
Parliamentary disallowance
An International Allocation Pool Determination, and any variation to it, would not be subject to parliamentary disallowance under the Legislation Act 2003. This means the Minister’s determination of the allocation pool and associated allocation requirements could not be overturned through the ordinary parliamentary disallowance process.
According to the Explanatory Memorandum, the exemption from parliamentary disallowance is intended to provide commercial certainty for providers and reflects the Government’s view that decisions affecting overall expenditure should remain an Executive function.
Allocating international student places
Under the proposed legislation, ATEC must allocate international student places to one or more ESOS registered higher education providers. The allocation must be made in writing and may specify either a fixed number of places or a method for determining the number of places allocated to each provider, allowing for a formula-based approach rather than fixed allocations.
Past allocation performance
When determining future allocations, ATEC would be required to consider a provider’s previous performance against its allocation, including the extent to which it exceeded, or did not exceed, an earlier allocation. This means a provider’s allocation history would become a mandatory consideration when ATEC makes future allocation decisions.
The Explanatory Memorandum makes clear that exceeding an allocation would not constitute a breach of a provider’s mission-based compact or trigger its suspension. However, it states that where a provider exceeds its allocation, ATEC may take that into account when negotiating future mission-based compacts.
Universities are treated differently to independent providers
Different allocation arrangements apply to universities and other higher education providers. For Table A and Table B providers, the number of international student places allocated by ATEC becomes the provider’s “international student profile”, a term that is not applied to other higher education providers, which instead receive an allocation.
Universities are also entitled to a formal consultation process before an allocation is made. ATEC must consult with the provider, provide its proposed allocation in writing and allow 10 business days for a response. No equivalent consultation requirements apply to other ESOS registered higher education providers.
Allocations can be varied
Allocations may also be varied during the allocation period. ATEC may vary an allocation on its own initiative or following a direction from the Minister to consider doing so. Where the Minister changes the International Allocation Pool Determination or directs ATEC to reconsider an allocation, the Commission must comply with any new requirements specified by the Minister when making that variation.
While providers would generally receive at least 10 business days’ written notice before an allocation is varied, the Bill creates exceptions, including where a variation results from a change to the International Allocation Pool Determination or a ministerial direction, or where the variation increases the number of international student places allocated to the provider.
Amendments to the Education Services for Overseas Students Act 2000 (ESOS Act)
The ESOS Act would also be amended to support ATEC’s new functions by allowing information collected under the Act to be shared with the Commission, its staff and contractors for the purposes of administering the ATEC legislation. The amendments also allow authorised recipients to be granted access to relevant systems or parts of those systems and permit information sharing with the Commonwealth Ombudsman for the administration of the Ombudsman Act 1976.
Together, the amendments establish the architecture for allocating international student places, setting out the respective roles of the Minister and ATEC, the factors to be considered when making allocations and the process for varying them over time. While the Bill does not establish any direct statutory consequences where a provider exceeds its allocation, previous allocation performance would become a mandatory consideration in future allocation decisions and may also be taken into account when negotiating future mission-based compacts.
