Monthly Archives: July 2014

What legal changes are needed for the Pyne higher ed reform package?

A few people have asked me about what legal changes are required to implement the Pyne higher education reform package. This post summarises what I think the legal situation will be. The relevant legislation is the Higher Education Support Act 2003 (HESA).

Changes to Commonwealth contribution rates

The government plans to introduce new, generally lower, Commonwealth contribution rates. This requires amending section 33-10 of HESA. I’ve heard it said that this will be part of the appropriation bills which by convention are passed by the Senate, but this isn’t right. Those appropriation bills cover only a smallish percentage of government funding, not including the Commonwealth Grant Scheme.

The government has also indicated that it wants to further reduce funding rates for diploma courses and non-university higher education providers. That would require more substantial redrafting, especially if the government intends to expressly fund research through the Commonwealth Grant Scheme. Section 33-10 alludes to the ‘benefits to students’ power in the Constitution. On the basis of the Williams No. 2 case (the school chaplains case), the High Court may well take a dim view of using this provision to fund research. (Update: There are other potential Constitutional foundations that possibly could be used here, such as the corporations power that was used for the TEQSA Act, universities being legal corporations.)

Increasing or abolishing the student contribution cap

This requires amendment of section 93-10 of HESA.

The government has said that international student fees will be the new cap. While not expressed exactly in those terms, this is already legislated through section 36-55 of HESA. What that section says is that student contribution amounts (legally defined as being for students in Commonwealth supported places) can’t be more than tuition fees (legally defined as being for full fee students). As section 36-30 effectively bans domestic full fee undergraduate students in public universities except in very limited circumstances, the tuition fee reference is almost invariably going to be to international students.
There is no requirement to offer courses to international students, and universities can increase their international student fees, so this is not a very strong capping mechanism.

Requiring universities to put 20 per cent of additional student revenue into a Commonwealth scholarship fund

One complexity here is that division 46 of HESA already has Commonwealth scholarships, in this case actually funded by the Commonwealth rather than other students. Apart from that there could be a backdoor way of doing this, via section 30-25(2), which enables the Commonwealth to put almost any requirement on universities not expressly contradicted by the Act as a condition of receiving funding. Given that the Commonwealth once got away with using 30-25(2) to force the University of Melbourne to subsidise the then legally separate Victorian College of the Arts, requiring universities to subsidise their own students would look reasonable in comparison.

That said, legislation or delegated legislation would give the policy a stronger legal basis, so I expect the government will pursue one of those options. Read more »

Language background should be dropped as a higher ed equity category

At The Conversation, Tim Pitman has anlaysed enrolment changes under the demand driven system of the official equity groups.

He mentions in passing one equity group that survives on the list despite it not predicting educational disadvantage: coming from a non-English speaking background and arriving in Australia in the last decade.

Census data suggests that it is people from English speaking backgrounds who lag in university attendance. Limiting the analysis to 18 to 20 year olds who are citizens (to avoid international students skewing the analysis), only people who speak Australian Indigenous languages at home have lower rates of university attendance.

NESB attend

Narrowing the analysis to people arriving in Australia between 2001 and 2011 does not change the broad picture, with people speaking an African language at home having about the same rate of university attendance as people who speak English at home, with the other groups having higher, and often significantly higher, rates of attendance.

NESB recent arrival

Speaking English at home is not, of course, in itself a disadvantage when it comes to going to university. Class, cultural and locational factors explain these differences. These factors are already covered by other equity categories, making language background redundant.

Update: Tim Pitman in comments below is questioning whether restricting the analysis to 18-20 year olds is enough to sustain the argument. I give reasons below why I think it is. However, to test this I have analysed 30-34 year olds. I don’t think these numbers are as good as the 18-20 year olds, as they are more affected by adult migration by people who already have degrees. Also there will be some double counting of people who have a degree and are studying. But they are a guide. Here we do get one language group, Southwest and Central Asian (without double-checking the numbers, I am guessing mainly Arabs, Afghans and Turks) which has lower rates of educational attainment and participation. However, the differences aren’t large and overall it is still very difficult to argue that speaking a language other than English at home is in itself associated with educational disadvantage.

30-34 year olds

Scholarship scepticism confirmed

Eighteen months ago I was much less full of praise than others for Graham Tuckwell’s $50 million scholarship donation to the ANU. I said:

Like many scholarship schemes, the Tuckwell scholarship will go to people who already have plenty of potential that is unlikely to go to waste. They will go to university anyway, find mentors anyway (one of the claimed benefits of the scheme), and make something of their lives. They are not the people who need help.

Instead, these scholarships are used for essentially wasteful positional competition between universities. The ANU will use the Tuckwell’s scholarships and the associated publicity to try to take top students away from Sydney, Melbourne and other universities that buy talented students .

The announcement today of the 2015 scholarship winners highlights my point. The schools represented from my home state of Victoria (below) hardly suggest that the scholarships are opening up opportunities for the under-privileged. Instead, they are the ANU poaching students from the University of Melbourne.

Melbourne Grammar School, Westbourne Grammar School, Geelong Grammar School, Melbourne High School, Geelong Grammar School, Ballarat Grammar School St Kevin’s College, Presbyterian Ladies’ College

As I said last year, there are much worse ways a rich man could spend his money. But there are also much better ways.

Update: A reader who likes empirical data has sent me the socioeconomic background data of the successful schools. Three of the students are from schools that have more than 25% of their students from low SES backgrounds. But that isn’t enough to change the overall picture of massive over-representation of the top quartile.

SES schools