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.

Justice Hayne said something similar:

the notion of benefits is more confined than a generalised reference to provision of advantage. ….The payments that are made under the NSCP [chaplaincy program] are not made to or for students. They are made to provide a service to which students may resort and from which they may derive advantage. But they are not “benefits to students”.

Justice Heydon, however, disagreed. He thought that it was too difficult to distinguish the inherent educational requirements of being a student from the general life circumstances of being a student.

On the account of all three judges, I think that tuition subsidies clearly fall within the definition of ‘benefits to students’. However it is less certain that funding for non-academic student services is constitutional. This now occurs via the SA-HELP loan scheme. There is also now a requirement that higher education providers receiving Commonwealth-supported places provide certain non-academic political and service information services. However, where the money for these things must come from is not specified.

SA-HELP exists to fund fees for “amenities and services not of an academic nature, regardless of whether the person chooses to use any of those amenities and services”. Both elements seem to break the tight educational nexus that Kiefel and Hayne are seeking.

I am no constitutional law expert, but the comments of Kiefel and Hayne suggest that the legal status of SA-HELP is worth exploring in more depth.