Category: Legal matters

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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The National Student Ombudsman and academic life

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A previous post outlined the contents of the Universities Accord (National Student Ombudsman) Bill introduced into parliament last week. This post examines its implications for academic life.

Although the bill generally exempts curriculum content or assessment methods from review by the Ombudsman, the minister will be able to over-ride these exemptions with a legislative instrument.

Students will use the Ombudsman to pressure academics for special consideration and to avoid discipline for misconduct. This creates an incentive for academics to accept questionable claims and overlook likely cheating rather than risk wasting time on an Ombudsman investigation.

The post’s section references are to the bill.

Academic judgment

The Ombudsman legislation does not permit student complaints ‘to the extent that the action involves the exercise of academic judgment’: section 21AD(3)(c).

The bill’s explanatory memorandum gives as examples of excluded complaints (p. 23) ‘decisions about the academic merit of a grade awarded, the content of a curriculum, and teaching and assessment methods.’

But section 21AD(4) undoes this by stating that exceptions can be over-ridden by the National Student Ombudsman Rules.

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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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The underexplained and insecure Commonwealth Prac Payment

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The planned Commonwealth Prac Payment aims to help students finance mandatory practical training, such as clinical training or teaching rounds. Initially teaching, nursing and midwifery, and social work students in higher education and VET will be eligible.

According to the government, the Prac payment will be means-tested and is ‘intended to support learning outcomes, where the financial impacts of placements may have otherwise influenced students to defer or withdraw from study‘ (emphasis added).

The payment will be matched to the single Austudy rate, $319.50 a week as of today.

The policy is due to start on 1 July 2025, with part of the legal framework in a bill introduced into the House of Representatives last week.

Bureaucratic and intrusive eligibility criteria

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

Andrew NortonLeave a comment

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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Accord implementation proposals, part #1: Setting up ATEC

Andrew Norton3 Comments

The government has released ‘implementation consultation’ papers on the Australian Tertiary Education Commission (ATEC) and how its system of managed growth in Commonwealth supported places would work. This post looks at some features of the ATEC paper. A subsequent post looks at how ATEC would distribute student places between universities.

ATEC legislation

ATEC would have its own legislation. A new funding act would replace the current Higher Education Support Act 2003. Its suggested name is the Higher Education Funding Act, the same name the funding legislation had between 1989 and 2004 (HESA 2003 started in 2005).

A performance metric for the government: keep the HEFA 2 legislation below the 592 pages of the latest HESA 2003. The original HESA 2003 was only 220 pages.

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What’s new in the funding agreements, part 4: revised equity plan rules

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As discussed in a blog post last week, the revised 2024-25 Commonwealth-university funding agreements add new restrictions on early offers. The revised agreements also rewrite the rules on a novel feature of the original December 2023 2024-25 funding agreements. These rules cover a new policy to spend unused Commonwealth Grant Scheme allocations on activities set out in equity plans.

The May funding agreements improve on their December 2023 versions by potentially making the equity plan requirement optional. However a change to how the equity plan amounts are calculated reduces how much money universities could receive.

The revised funding agreements also include some minor funding increases.

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What’s new in the university funding agreements, part 3: new rules on early offers

Andrew Norton1 Comment

Earlier this year I wrote a couple of blog posts on the 2024 university-Commonwealth funding agreements signed late last year. Revised agreements were signed in May 2024. These agreements include new rules on early offers. This post argues that early offers rules should be legislated separately and not included as a condition of Commonwealth Grant Scheme funding.

Restrictions on school leaver early offers

As foreshadowed by the minister in February, university funding agreements now restrict school leaver early offers. The basic rules are 1) No offers to Year 11 students; 2) No offers to Year 12 students prior to September; and 3) Offers must be conditional on successful completion of a senior secondary certificate of education.

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