Category: Government and bureaucracy

Is the government introducing a de facto ban on new higher education providers?

Andrew Norton1 Comment

Update 28/11/2025: Last night the Senate accepted Coalition amendments that exempt higher education providers and TAFEs from the requirement to offer courses to domestic students for two years before being eligible to offer courses to international students. So effectively the provision discussed in this post applies only to non-TAFE registered training organisations. As I noted in the original post, offering courses to domestic students for two years is much easier for RTOs than higher education providers. Large numbers of RTOs have already met the requirement and could move into international education.

While this is good news, enrolment caps the government will try again to legislate next year could prove another insurmountable obstacle to education providers of any kind entering the international market.

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Last week Claire Field published an interesting overview of 15 new higher education providers since January 2024. But growth of this kind would become very difficult if the government’s ESOS amendment bill passes unamended. It would limit registration of new providers offering courses to international students. This post examines whether the proposed restriction would, in practice, be a de facto ban on new higher education providers.

Under the ESOS amendment bill providers could not offer courses to international students without first delivering courses to domestic students, but providers are generally not competitive in the domestic market without offering FEE-HELP loans. But to get access to FEE-HELP, providers must demonstrate experience in delivering higher education – in practice usually by teaching the international students the ESOS bill would stop them recruiting.

Legislative references are to ESOS Act 2000 section numbers, as they are or would be if the amendment bill passes unchanged.

The proposed changes

The ESOS amendment bill would give the minister the power to suspend, for up to 12 months, applications and processing of applications for course and provider registration: sections 14C to 14F.

To be registered on CRICOS to offer courses to international students the provider must have delivered courses for consecutive study periods over at least two years to domestic students in Australia: section 11(2).

This post focuses on the section 11(2) change by looking at how providers have entered the international and domestic markets in recent years.

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The education minister should not have the power to cancel ‘classes of courses’ for international students

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Update 28/11/2025: Last night the Senate passed the ESOS amendment bill with Coalition amendments. While I still believe this provision counts as very poor public policy – for reasons exanded up in my Senate inquiry submission – the Coalition changes do improve things somewhat. These are noted in the text below.

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The government is having another go at its 2024 Education Services for Overseas Students (ESOS) legislation, reintroducing it earlier this month minus the enrolment caps that saw it blocked in the Senate last November.

This post draws on and adds to things I wrote last year about proposed ministerial powers to suspend and cancel ‘classes of courses’.

The amendments discussed in this post were partly why I regarded the 2024 ESOS amendment bill as the single worst piece of higher education related legislation to come before the Parliament in my career.

What took it beyond standard bad policy was its use of broad ministerial discretion with minimal constraints on how it is exercised. That creates rule of law problems, making it hard to know in advance what the rules are. If passed, the amendments could lead to some education providers being arbitrarily punished for the actions of others.

Legislative references are to the section numbers of the ESOS Act 2000, as they are or as they would be if the bill passes unamended.

A mass course cancellation power

The bill gives the education minister power to simultaneously suspend or cancel multiple ESOS course registrations at multiple providers: division 1AB. It does this by making the unit of regulation a ‘class of courses’ – the definition of which is discussed below.

This mass cancellation power differs from existing laws that give the ‘ESOS agency’ (TEQSA in higher ed, ASQA in VET) power to suspend or cancel the registration of specific courses or specific providers: sections 83 to 92. It also differs from the current power of the immigration minister to issue a ‘suspension certificate’ to a provider. This can be done in specified circumstances such as fraud in visa applications, students breaching visa conditions, and other visa issues: sections 97 to 103.

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Gender-based violence legislation, Part 3: Reporting and penalties for higher education providers

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The first post in this series outlined the meaning of gender-based violence and processes that apply to all higher education staff and students. The second post looked at processes when a complaint of gender-based violence is made.

Legislative references, unless otherwise specified, are to the Universities Accord (National Higher Education Code to Prevent and Respond to Gender‑based Violence) Bill 2025. The draft code is here; it uses the language of ‘standards’ but I will refer to code ‘sections’ when noting a specific rule or requirement.

Update 20/10/2025: The enacted legislation is here. The enacted code is here.

Reporting

The code comes with very extensive reporting requirements. All the different things providers must report on run for four pages in the code: standard 6, pp. 17-20.

The code stresses the role of the data collected on programs to reduce gender-based violence: code section 6.1.

The Secretary can disclose information received as part of this reporting: sections 43 and 44.

The Secretary must produce an annual report to be included in the Department’s annual report (which is usually tabled in Parliament in October): section 47.

Given the Department of Education’s chronic failure to release higher education data in a timely way a statutory requirement to publish an annual report is good.

While the Department’s annual report operates on a financial year basis it would be helpful to produce the data on a calendar year basis as well, to reflect the operating cycle of universities.

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Visa processing and international student policy

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Some universities and vocational education providers would prefer enrolment caps to ministerial direction 107, which consigned their offshore student visa applications to the end of the visa processing queue. 107 tells the Department of Home Affairs to give processing priority to applications for schools, postgraduate research, and higher education institutions with a low immigration risk rating.

The education minister has said that ministerial direction 107 will go if the caps bill passes.

While 107 should be repealed, as it unfairly penalises some student visa applicants and education providers, like Claire Field I think the sector over-rates the benefits that would follow. 107 is blamed for other things that happened around the same time that would not be affected if it went.

These other things include the resources Home Affairs allocates to student visa processing, changed practices in applying visa eligibility criteria, and new visa rules.

Student visa processing levels

From November 2022 to July 2023, Home Affairs put significant effort into clearing a student visa backlog. On my calculations, in those nine months they processed – counting both grants and rejections – 483,199 visa applications (primary visa holders only). That is 54% more than the equivalent number pre-COVID, between 2018 and 2019.

In the second half of 2023, shown in green in the chart below, monthly visa processing dropped back to levels that were similar to 2019. Ministerial direction 107 was announced in December 2023, but that was the fourth month of more normal pre-COVID visa processing volumes.

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The National Student Ombudsman and bureaucratic overreach

Andrew Norton3 Comments

With so much going on in higher education policy at the moment, the National Student Ombudsman legislation has not received much attention. But university submissions to the Ombudsman bill Senate inquiry raise important issues. I also put in a submission.

Academic judgement versus academic matters

University submissions make similar academic freedom objections to the bill as one of my blog posts on the National Student Ombudsman.

One issue is the scope of ‘exercise of academic judgement’, which is an ‘excluded action’ that the Ombudsman cannot investigate. The bill’s explanatory memorandum seeks to distinguish ‘academic judgement’ from ‘academic matters’, such as claims for special consideration and discipline for academic misconduct, which it thinks should be within the Ombudsman’s jurisdiction.

The QUT, Monash, University of Melbourne, ATN, Gof8, UA, UTS and UQ submissions all raise concerns about this aspect of the bill. As UQ says:

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Making the international student caps bill less bad

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Today is the likely final day of public hearings for the international student caps bill, ahead of a report due on 8 October.

Despite the strong campaign against this bill the political reality is that the Opposition supports provider-level caps. This gives scope for a compromise that will see the bill pass in some form.

In my final submission to the Senate inquiry I focused on ways to make the bill less bad, while still letting the government and alternative government achieve their migration-related policy objectives.

Remove the course caps provision

80%+ of international students do not stay in Australia permanently. In this context, the government’s position that international students should be stopped from taking courses that don’t align with Australia’s skills needs borders on the absurd.

With over 25,000 courses registered on CRICOS regulating at the course level is also beyond the government’s administrative capacity. As Claire Field has been reporting, there are numerous errors in the much smaller task of imposing about 1,150 provider-level caps.

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Should ‘student-led organisations’ get a guaranteed share of student amenities fee revenue?

Andrew Norton2 Comments

Senate hearings this week will examine the Universities Accord (Student Support and Other Measures) Bill. This bill includes the changes to HELP indexation, the FEE-FREE Uni Ready Places, the Commonwealth Prac payment, and a requirement that 40% of student amenities fee revenue be directed to student-led organisations. My submission to the inquiry is here.

The status quo on student amenities fees

The current law on student amenities fees is a compromise on the long-running compulsory versus voluntary student unionism debate. Prior to 2006, universities could charge an unregulated, upfront fee for student amenities. In an a reversal of normal political positions, left-wing activists supported the unregulated status quo (because it funded their activities), while Liberal students and eventually Liberal governments moved to regulate the market and abolish the fee (also because it funded left-wing activities). In 2005 the Howard government finally legislated away the compulsory fee, with effect from 2006.

In 2011, Julia Gillard legislated to restore a compulsory amenities fee, with effect from 2012. But the fee was price capped ($351 in 2024), funded by the income contingent SA-HELP loan instead of being upfront, and the revenue could only be spent on a list of specified activities. The legislation specifically prohibits the money being spent on on a political party or the election of a person to local, state or Commonwealth office.

Under guidelines derived from the Gillard-era compromise, universities must ‘provide adequate and reasonable support, resources and infrastructure for democratically elected student representatives to carry out their functions’. However there is no specific share of amenities fee revenue that must go to student-led organisations.

In practice the amenities fees is mainly relevant to Commonwealth supported places and the fixed, relatively low amount of money universities receive for them. With no CSP funding for non-academic services the student amenities fee fills this financial gap. Although universities often charge full-fee students a separate amenities fee, reflecting institutional history and politics, this is not necessary. The cost of amenities can just be bundled into the overall fee, as it typically is outside the universities. Only 5 non-university higher education providers use SA-HELP.

Changes under the bill

The Universities Accord (Student Support and Other Measures) Bill specifies that at least 40% of amenities fee revenue must go to student-led organisations: section 19-39(1). An organisation is student led if a) the majority of people on the governing body are currently enrolled or have been enrolled in the previous three years; and b) the majority of persons on the governing body have been democratically elected by students; and c) the organisation satisfies requirements specified in government-set guidelines: section 19-39(3).

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A National Student Ombudsman – how would this new student complaints mechanism work?

Andrew Norton1 Comment

Last week the government introduced legislation for a National Student Ombudsman.

This post outlines key provisions of the bill. A government summary is here. A subsequent post looks at the potential impact of the bill on academic life.

Statutory references are to the Universities Accord (National Student Ombudsman) Bill, using the sections as they would appear in the Ombudsman Act 1976 if the bill passes.

Which students can complain?

All students of higher education providers, except those enrolled in VET courses, can complain to the National Student Ombudsman (abbreviated to Ombudsman from now). Apart from the VET exception, non-higher education students are included. Enabling, microcredential and professional development course students will be covered. In some cases prospective or former students can also make complaints: sections 3(1) and 21AD(1)(a).

Another person can make a complaint on behalf of the student: section 21AD(1)(b).

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More detail on international student caps

Andrew Norton5 Comments

This week the government announced the overall international student cap for 2025, of 270,000 new commencing students, with some student types not counted towards the cap. I have a high-level summary in The Conversation. This post explores the capping announcement in more detail, noting additional problems with this deeply flawed policy.

The power – or lack thereof – to exempt particular types of students

On Tuesday the government announced three new exemption categories:

  • students who are part of “twinning” arrangements, taking some of their course offshore before coming to Australia
  • students with Australian government or “key partner” foreign government scholarships
  • students from the Pacific and Timor-Leste.

On my reading of the bill, the last two exemptions are not supported by its current wording and the twinning exemption is probably not within the bill’s existing scope.

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Counting international students – the method is critical to what effects caps have

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The debate on international student caps is mostly at the level of principle. But the capping bill‘s wording is also critical to its effects. A key issue is whether the cap is based on a cumulative total of enrolled international students through a year or the total on specific dates during the year. A cumulative count will have much more serious effects on students and education providers.

The cumulative count wording of the bill

The most natural meaning of the current bill is that the count is cumulative – ‘a limit’ (singular) on the ‘total’ number of overseas students enrolled in one or more years. This means that the cap is driven by the peak number during the year.

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