Is the student amenities fee loan scheme constitutional?

On the 7.30 current affairs program the other night, constitutional lawyer George Williams suggested that the Williams case High Court ruling might have implications for universities.

The case revolved around the constitutionality of the school chaplains program. Though reported in the past as about religion, the court in the end found for Williams on a ground concerning the executive power of the Commonwealth to act without legislation.

University funding does have a legislative basis. Its main constitutional backing is in section 51

(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; (emphasis added)

Three of the seven judges had something to say about what ‘benefits to students’ meant. Justice Kiefel said:

Social services provided to students might take the form of financial assistance, for example payment of fees and living and other allowances, or material assistance, such as the provision of books, computers and other necessary educational equipment, or the provision of services, such as additional tutoring. The term “benefits” in the context of s 51(xxiiiA) does not extend to every service which may be supportive of students at a personal level in the course of their education.

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Two views on prices

[Tertiary education minister] Senator Evans warned that fee deregulation would increase costs to students and threaten access.

“Increasing fees is what deregulation is about,” he said.

“It is about allowing the universities to charge more.

“We would see a reduction in participation as people were priced out of the market’.

The Australian, 6 June 2012

Ms Gillard says she wants to tackle rising childcare costs, but does not think capping fees will work.

She says that would prevent centres raising their fees if their costs go up for legitimate reasons.

ABC radio news, 7 June 2012