Category: Legal matters

Needs based funding – the low SES and Indigenous component

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Directing some university funding based on student, rather than just course, characteristics was one good idea coming from the Universities Accord. Students arrive in higher education with varying academic abilities. Other personal attributes and circumstances present potential obstacles to successful study. In a mass higher education system these are routine issues. But some universities enrol more students needing help to succeed than others, a fact only indirectly recognised to date, through equity group funding.

In 2024 I argued that needs based funding should go beyond equity group membership and use more reliable needs indicators, including admissions information. Policy should stop prioritising niche targeted programs over larger-scale initiatives that would benefit many students but higher-needs students the most. Broader changes to pedagogy or student services, for example.

But the needs based funding system as introduced for 2026, for which we now have additional administrative detail, is for the most part not genuine needs based funding. It is an update of old equity programs. In this post I will examine the ‘equity component’ of the new program. A later post will look at the ‘regional component’.

The legal framework

The current legal basis of needs based funding is intended to be temporary. Like previous equity programs it is authorised under section 41-10 (item 1) of the Higher Education Support Act 2003, under which the minister makes ‘grants to promote equality of opportunity in higher education’. It is one of the ‘other grants’ in the Act, that is other than the Commonwealth Grant Scheme (CGS). All ‘other grants’, and the amounts paid under them, are at the discretion of the minister. The plan, however, is to give needs based funding its own statutory basis in the CGS. We are yet to see the necessary legislation.

While current legal arrangements are temporary they are also unusual and unsatisfactory. The funding amounts and formulas, which I will discuss shortly, are not in the needs based funding legislative instrument. This instrument regulates eligibility for and use of needs based funding, but not how it is calculated. Indeed, it does not require that any money be paid at all.

Section 41-30 of HESA 2003 states that the amount of each ‘other grant’ is based on the guidelines, of which there are none for this matter, or ‘the amount determined in writing by the minister’. So needs based funding depends on this ministerial determination.

Instead of specifying the funding rules in a legislative instrument, the Department of Education has issued a document called Needs-based Funding Guidance v1.0 December 2025. This has no formal legal status, but tells universities how the minister intends to calculate funding per institution under section 41-30.

Funding determined this way without formal guidelines is not unprecedented in higher education policy, for example the national institutes grants. But I can’t think of another example where there is an underlying funding formula but the government has chosen not to put it into legal form. I see this as another example of the decline of the rule of law in higher education, in favour of ministerial or potentially ATEC discretion.

I expect that needs based funding will be paid, but to date there is no public evidence that the necessary funding has been authorised.

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The Australian Tertiary Education Commission legislation, Part 6, International student caps

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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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The Australian Tertiary Education Commission legislation – Part 2, Mission based compacts

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An earlier post looked at the objectives of ATEC, as set out in legislation introduced yesterday. This post looks at mission based compacts, the key instrument of ATEC control over universities.

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

Entering into mission based compacts is a function of ATEC: section 11(b).

Purpose of mission based compacts

Since the Universities Accord Final Report the term ‘mission based compact’ has been ambiguous. Whose mission will the compacts implement, the government’s mission or the university’s mission?

The ATEC bill tries to have it both ways. Section 28 describes the purpose of compacts as giving the ‘provider flexibility to pursue their goals and mission’ while also contributing to an ATEC statement of priorities for the sector, diversity in the system, and meeting the needs of the provider’s students and community.

The bill’s explanatory memorandum offers this passage of doublethink:

“Compacts will enable providers to demonstrate how their unique mission – the institution’s core purpose, values, and goals – aligns with national, state and local priorities, planning, and strategy, as well as industry engagement and innovations in learning and teaching. Informed by strategic priorities identified in the Statement of Strategic Priorities…”

How is a mission unique if it aligns with national priorities? All section 28 means, I think, is that universities can still pursue objectives not specified by ATEC, provided that these do not conflict with any requirements ATEC imposes. The extensiveness of those requirements will determine how much scope for independent action remains.

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The review of TEQSA’s powers – my submission

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The government is reviewing the Tertiary Education Quality and Standards Agency (TEQSA) legislation. The government consultation paper is here. Submissions closed at the end of October.

Although my submission points out areas of over-regulation, it also concludes that TEQSA should have greater enforcement powers.

Multi-regulation

As I have pointed out before, higher education suffers from the same or overlapping areas of activity being regulated in multiple contexts and by different regulators.

One area where this is now particularly intense is student complaints. Both the Higher Education Provider Guidelines 2023 grievance and review procedures (for non-Table A providers) and since October 2025 TEQSA’s new Statement of Regulatory Expectations on Student Grievance and Complaint Mechanisms (all providers) regulate overall complaint procedures. My submission includes a table showing how, in many areas, these two sets of rules regulate the same topic in at least slightly different ways. This is confusing. The Higher Education Provider Guidelines complaints section should go if TEQSA continues with detailed regulation.

On top of these two general complaints processes are specific ESOS rules for complaints on certain matters by international students, the extremely detailed rules for gender-based violence cases that come into effect on 1 January 2026, and the National Student Ombudsman that started operations on 1 February 2025, and provides students with a chance to re-prosecute unresolved complaints.

On multiple agencies covering the same topic more broadly, one important point I read in other submissions, too late to include in mine, is the need to clearly define and distinguish the roles of TEQSA and the new Australian Tertiary Education Commission.

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Senate inquiry submission on mass cancelling courses for international students, banning new higher education providers, and Indigenous demand driven funding for medical courses

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Update 28/11/2025: The Senate passed some amendments to this bill. These are noted in the original posts.

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Senate inquiry submissions are due on Friday for the Education Legislation Amendment (Integrity and Other Measures) Bill 2025.

I am releasing my late draft submission in case it helps people finalising their own submissions and to identify any errors or omissions on my part.

Update 17/11/25: Final submission on the Senate committee website.

It builds on my three prior blog posts on the subject – on mass cancelling courses for international students, on a de facto ban on new higher education providers, and on extending Indigenous demand driven funding to medical courses.

Mass cancelling CRICOS course registrations

The main new content in the submission is description of existing legislative powers that can achieve the same claimed policy goals as the course cancellation proposal.

The practical effect of the bill, if it passes, would be to enable the suspension of the rule of law. It would allow the minister to make decisions according to vague criteria, without consulting anyone or considering other relevant laws. Due process would be abolished; providers could be penalised with course cancellation even if they have followed the law and acted ethically at all times.

It shocks me that this Trump-style bid to rule by executive order has even been introduced into Parliament. It’s staggering that, given nearly a year to think again since its original defeat last year, the government has brought back a bill that is, in some places, even more defective than their first attempt. I am referring here to removing the requirement to consult TEQSA or ASQA before cancelling a course on ‘standard of delivery’ grounds.

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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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Gender-based violence legislation: Part 2, Processes for victims and perpetrators

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My first post on the higher education gender-based violence bill and its draft code looked at how gender-based violence is defined and the broad obligations placed on higher education providers and their staff and students.

This post examines procedures for student victims of gender-based violence and for the accused perpetrators. The rules also apply to staff, but as there are existing laws on these matters for workplaces I will focus on students. There is a 2024 summary of university policies and practices on responding to sexual violence, but I have not attempted to compare them to the code.

The code includes reasonable measures to support student victims and, to a lesser extent, accused respondents. I am not convinced, however, that the latter will face a fair process in more serious cases if universities rely on the code alone to guide their policies.

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

Student victims/disclosers

A common criticism of universities has been inadequate responses to student complaints regarding sexual misconduct. In a 2021 student survey on sexual harassment and assault most victims did not report their experience to the university, but of those who did over 40% were dissatisfied. The code includes an extensive list of things that providers must do in these cases: code section 4 (all legal references unless otherwise stated are to the draft code).

These required provider actions include implementing measures to ensure the safety of the discloser, prioritising urgent access to support services, minimising how often the discloser must repeat their story, providing translation and interpretation services where necessary, implementing academic adjustments, and where necessary discussing the investigation and disciplinary processes: code section 4.6.

The discloser must have the opportunity for a support person to be present: code section 5.11.

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Gender-based violence legislation: Part 1, Definitions and requirements for all higher education providers, staff and students

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Legislation on ‘gender-based violence’ in higher education is back in Parliament. Its principal purpose is to provide a legal foundation for a National Higher Education Code to Prevent and Respond to Gender-based Violence. This will be a legislative instrument made after the legislation is passed, but the minister has released its expected contents.

The code is scheduled to start on 1 January 2026 for universities and 1 January 2027 for other providers.

This post looks at the definition of gender-based violence, extension of the policy beyond higher education providers, and policies that will affect all staff and students. A second post looks at procedures for victims and perpetrators of sexual harassment or assault. A third post looks at reporting and penalties for higher education providers (apologies, but this is all much briefer than the 75-page original; 45 pages in the bill and 30 in the code).

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

What is gender-based violence?

According to the bill, ‘gender‑based violence means any form of physical or non‑physical violence, harassment, abuse or threats, based on gender, that results in, or is likely to result in, harm, coercion, control, fear or deprivation of liberty or autonomy’: section 5 (legislative references, unless otherwise specified, are to the Universities Accord (National Higher Education Code to Prevent and Respond to Gender‑based Violence) Bill 2025).

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What’s in the 2025 funding agreements? – ‘Higher education courses’ block grants

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In February I reported on preliminary university-level 2025 allocations under the Commonwealth Grant Scheme and estimates of student contributions.* These have since been updated to add money for FEE-FREE Uni Ready places and regional university study hubs. The revised funding summary is here.

This post looks at the underlying funding agreements for more detail on the ‘higher education courses’ part of CGS funding. As usual in funding agreements since 2021, the detail reveals a range of legal and policy problems.

A spreadsheet summary of higher education courses funding for 2025 is here.

The role of higher education courses funding

Higher education courses funding is intended, by the Higher Education Support Act 2003, to be a flexible block grant. Within their total funding envelope, expressed as the ‘maximum basic grant amount’ (MBGA), universities can move resources across coursework AQF levels and between fields of education, other than medicine.

Although higher education courses funding is supposed to be flexible, both Coalition and Labor governments have used ad hoc funding agreement conditions to restrict use of higher education courses money to purposes chosen by the government.

This has in turn led to the unlegislated concepts of ‘base MBGA’ and ‘total MBGA’. Total MBGA is actual MBGA under HESA 2003. Base MBGA excludes most ad hoc programs. Its purpose is to reduce expenditure on the higher education continuity guarantee and the current equity plan funding. If universities don’t meet the ad hoc criteria they get $0 for those non-delivered places.

Overall trend in higher education courses funding

To the surprise of universities the first-term Albanese government often treated them harshly. But Labor kept the former government’s promise to index higher education courses funding to CPI. That was 4.1% for 2025. They also kept the Coalition’s region-based funding increases. While there are complex financial flows in and out of higher education courses funding – discussed further in this post – it is up 6.1% between 2024 and 2025 to a total of $7,687,211,975.

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