The Universities Accord Final Report recommended that ATEC be an ‘independent statutory authority … to enable it to provide robust advice and support evidence-based decision making and planning’ (p. 234). This post explores the relationship between ATEC and the government, as set out in the ATEC bill introduced into Parliament last week.

I should say at the start that unelected bodies with significant powers (‘independent’) are not necessarily good things. Government agencies should work within clear goals and rules established by democratic processes.

But independence can be beneficial in ensuring that government (and the broader public) get honest data – the ABS is a model here. Independent bodies can also help governments avoid the temptation to do things that are politically beneficial in the short run but detrimental in the long run – the RBA is a model here. Both the ABS and the RBA make mistakes, but their overall approach is better than letting the government decide whether or not to release vital data or to set interest rates with public opinion in mind.

All legislative references, unless otherwise specified, are to the Universities Accord (Australian Tertiary Education Commission) Bill 2025.

Administration of mission based compacts

The most important ATEC function will be to administer mission based compacts. As noted in a previous post, the content of mission based compacts will be driven by a ministerial statement of short-term and long-term strategic priorities: section 15. However this is not a legislative instrument: section 15(6). This means that neither the Senate nor the House of Representatives can disallow it. I take this as a democratic negative compared to the current system, under which key spending programs, such as equity and research block grants, have their own legislative instruments.

ATEC must prepare its own statement of strategic priorities: section 43. ATEC must take the minister’s priorities into account when performing its functions: section 15(4). Within the limitations of the new framework, this is appropriate in putting ATEC’s direction under the broad control of a person who can be subject to parliamentary questions, even if the ministerial statement of priorities cannot itself be vetoed. ATEC itself will appear before Senate Estimates.

Importantly, the minister will not give directions to ATEC in relation to decisions ATEC makes or in relation to ‘a higher education provider or a class or classes of higher education providers’: section 71(2)(b) & (c). This compares favourably to the current funding agreement system, under which the minister can effectively determine the content: section 30-25 of the Higher Education Support Act 2003. It is also better than the wide power to cancel course registration for international students, including on the basis of the ‘kind of provider’, which was approved by Parliament with modest improvements the same week the ATEC bill was introduced.

Section 71(2) reduces the risk of ministerial discretion being misused to penalise a university or universities in an arbitratry way.

The strongest guard against the misuse of power, however, is having rule-driven programs. On that the ATEC model would be worse than what we have now.

Independence of the ATEC Commissioners

The ATEC Commissioners must have certain qualifications, skills and experience relevant to their role: division 3. That will reduce the chance that the government can appoint as a commissioner somebody who will just reliably do whatever the government wants them to do, such as an ex-politician or political staffer.

The three commissioners – a full-time Chief Commissioner, a full-time First Nations Commissioner, and a third part-time Commissioner will be appointed by the minister for education for up to five years: sections 56(4), 57(4) & 58(4).

Within their five year appointments, commissioners can only be removed in limited circumstances. These include some clearish criteria: physical or mental incapacity, bankruptcy, failure to disclose conflicts of interest, being AWOL for 14 consecutive days: section 67(1) & (2). There are, however, some vaguer grounds: misbehaviour and unsatisfactory performance for a significant period of time: section 67(1)(a) & 67(3).

Overall, however, I think the commissioners will not be overly focused on pleasing the government for job security reasons. They are likely to be late-career individuals who will not have another five-year commissioner term as their top priority.

ATEC relationship with the Department

In my reaction to the June 2024 consultation powers on ATEC I observed an attempt by the Department of Education to retain power over higher education by disqualifiying as a commissioner, on claimed conflict of interest grounds, anyone with recent experience of higher education management.

While the ATEC bill requires commissioners to have ‘appropriate independence from all tertiary education providers’ the skills and experience provisions will make it hard to appoint a career bureaucrat: sections 56(3), 57(3) & 58(3). With the APS culture of revolving door senior appointments, with generic public service skills more important than subject matter expertise, only a small number of bureaucrats would satisfy the statutory requirements.

In other career respects, however, the Department has won significant victories. The staff assisting the ATEC will be employees of the Department ‘made available to the ATEC’: section 22(1). While performing services for the ATEC these staff will be subject to the direction of ATEC Commissioners: section 22(3). ATEC can hire contractors and consultants but only with the approval of the Secretary of the Department: section 24.

ATEC positions may be seen as just another rotation by career APS employees, looking for their next promotion within Education or another department, rather than by people hoping to build long-term career expertise in higher education. That said, TEQSA lacks this connection to the Department and has suffered from high staff turnover, contrary to my expertise-building hopes.

What advice ATEC can give the minister

As I noted in an earlier post, ATEC can only give the minister advice on funding issues if it receives a request from the minister: sections 11(d)(ii) & 41(1)(b). This falls short of the Accord Final Report goal of providing ‘robust advice’, that the government may not want to hear. ATEC can only publish advice to the minister with the minister’s agreement: section 69. This puts limits on any policy agenda ATEC can promote independently of the minister’s wishes.

ATEC and public information

Despite restrictions on advice, ATEC does have a mix of options and requirements in release of data and commentary.

As one of its functions, ATEC can ‘report and publish information in relation to the tertiary education system and higher education providers: section 11(g). It can also undertake or coordinate research and data analysis in relation to any of its functions: section 11(j). I’m not clear whether the ATEC or the Department will manage the standard statistical releases.

ATEC is required to produce an annual State of the Tertiary Education System report: section 42. The first report will be for 2026.

The bill gives ATEC the power to report on:

• ‘current and emerging trends in the tertiary education system’ and commentary on ‘proposed changes to the higher education system to address those trends and issues’: section 42(2)(a).
• progress towards participation and attainment targets set by the Commonwealth: section 42(2)(b).
• progress in improving coordination and collaboration between higher education and vocational education: section 42(2)(c).
• the extent to which the higher education system is meeting current student, skills and knowledge demand and may be able to meet future such demand: section 42(2)(d).
• relatedly, the extent to which higher education is promoting long-term innovation and creativity that contributes to skills and workforce development: section 42(2)(f).
• the extent to which higher education is delivering services in and for regional Australia: section 42(2)(e).
• outcomes for equity groups: section 42(2)(h).
• financial sustainability of the higher education system and kinds of higher education providers: section 42(2)(g).
• examples of good practice by a tertiary education provider: section 42(2)(i).

It seems to me that ATEC could pursue policy agendas suppressed as advice under section 69 in more general terms through the State of the Tertiary Education System report. However, they will only get the chance to do this once a year.

Release of State of the Tertiary Education System report

The state of the system must be put on the ATEC website no later than 12 months after the end of the calendar year it covers: section 42(3)(a). This allows for a leisurely release schedule. The 2026 report could appear as late as 31 December 2027.

The state of the system report must be given to the minister at least 4 weeks before it is published: section 42(3)(b). Once the minister receives the report it must be tabled in Parliament within 15 sitting days: section 42(4). This allows for considerable delay. On this year’s stitting calendar ATEC could have given the minister the report on 5 September with the 15 sitting days not up until 27 November.

Still, it is better than the current system for previously routine data releases, with some data delayed for years (applications) and others not appearing for six months or more after the time when they were released during the 2010s.

Conclusion

The ATEC will not be some benign ‘buffer body’ between the government and the universities. It is there to implement the government’s agenda. But compared to the current HESA 2003 funding agreements and ESOS rules it puts the minister at a distance from operational details at the provider level. Despite the constraints on releasing advice to the minister, via the State of the Tertiary Education System report ATEC will have some power to highlight issues the government might prefer were overlooked.