Under legislation to establish the Australian Tertiary Education Commission, introduced into Parliament in November 2025, a function of ATEC is to ‘allocate a maximum number of international student commencements to ESOS registered providers at the direction of the Minister’. This appears as section 11(h) of the Universities Accord (Australian Tertiary Education Commission) Bill 2025.

Does this create a power to cap international student numbers?

The ATEC bill’s explanatory memorandum states that further legislation will set out a framework for how international student commencements will be allocated (p. 8). But does section 11(h) on its own create a power to cap international students independently of this framework?

On its plain meaning I think it does. Section 33(1) of the Acts Interpretation Act 1901 says that: ‘When an Act confers a function or imposes a duty, then the power may be exercised and the functions or duty must be performed from time to time as the occasion requires.’

The minister can, by legislative instrument, create rules ‘necessary or convenient for carrying out or giving effect to this Act’, adding more detail to how the caps would work: section 75(1)(b), Universities Accord (Australian Tertiary Education Commission) Bill 2025.

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