At the weekend, Labor announced that it would require universities to increase admission requirements for teaching students. Shadow education minister Tanya Plibersek says that:

“Labor wants the best and brightest Australians studying teaching. If universities don’t do the right thing and fix this themselves, a Labor government will make them.”

But how will a Labor government make them do it? There is no history of the Commonwealth government directly setting entry requirements for university courses. For that reason, there is no specific power in existing higher education legislation to set admission requirements.

This blog post looks at what existing powers could be used to achieve this goal.

Directly targeting lower-ATAR students

The minister can, by legislative instrument, determine that ‘a specified course of study is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as Commonwealth supported students’: section 36-15 of the Higher Education Support Act 2003 (HESA 2003), emphasis added.

The legislative instrument could then specify that students with an ATAR below 80 (the figure nominated by Labor) could not be enrolled as Commonwealth supported students in teacher education. The university would then not get Commonwealth or student contributions for such students.

Such a determination would need to be made at least six months before the start of the course: section 36-15(4), HESA 2003.

In making the determination, the minister must have regard to its effect on students: section 36-15(3), HESA 2003.

A legislative instrument can be disallowed by either house of parliament, which is one potential obstacle to this method.

A determination under section 36-15 lifts the prohibition on full-fee undergraduate students: section 36-30 (1), HESA 2003. If the student is not Commonwealth supported they can only be charged a tuition fee: section 169-15, HESA 2003. This would be awkward for Labor, which came to office last time promising to abolish full-fee undergraduate places.

To ensure that the policy complied with other Labor policies and that universities did not use backdoor methods to by-pass the ban, the minister could also determine that undergraduate teaching courses are not eligible for FEE-HELP: section 104-10(2), HESA 2003. The minister must have regard to the effect on students of making such a determination. The determination can  be disallowed by either house of parliament.

Funding agreements

University funding agreements are sometimes used to implement higher education policy. They were used to impose the current funding freeze.

But in this case the legality of using funding agreements for minimum ATARs is doubtful.

This is because funding agreements cannot include conditions that could have been subject to a section 36-15(2) determination: section 30-25(2A), HESA 2003. As noted above, such a determination probably could be used to set a minimum ATAR.

Capping student places

Another option is to cap the number of student places in teaching courses, something that Labor has suggested. Capping is done by ‘designation’ under section 30-12, HESA 2003. Designation means that the number of student places is set in funding agreements with the universities, rather than being demand-driven or, in current circumstances, part of a flexible block grant.[1]

As with the other options, a designation can be disallowed by either house of parliament. But once the designation is enacted student places are distributed through funding agreements without further parliamentary scrutiny.

For designated courses universities could only be funded up to the number of places in their funding agreement multiplied by the relevant Commonwealth contribution rate: sections 33-5 and 30-27, HESA 2003.

For ‘over-enrolments’ (enrolments above the fully-funded number of student places) the university receives the student contribution only. There is a long history of ‘over-enrolment’ in the higher education system, so while designation can control spending it is not necessarily effective in implementing fine-tuned cuts to student numbers.

All sub-bachelor and postgraduate coursework courses are currently designated, so funded places in education courses at these levels are already under Commonwealth control. The number of places allocated to education is falling at the postgraduate level. Education was targeted for cuts due to a history of not all places being filled. Designation of education bachelor-degree courses would see each university allocated a quantity of full-time equivalent places in education.

Some universities will see upsides in designation. The current funding freeze applies to non-designated places and cannot be less than the amount paid for non-designated places the year before: section 30-27(3), HESA 2003. Taking teacher education courses out of the non-designated category would let universities expand other bachelor-degree courses at the full per student funding rate. Payments for the designated teaching places would be on top of the non-designated funding.

Also, Commonwealth contributions for designated places are still being indexed to inflation while the spending cap for non-designated courses is frozen in nominal terms: section 33-5 interacting with division 198, HESA 2003.

Labor has promised to restore the demand driven system anyway, but action on education may give universities some extra cash before that promise is implemented.

At the postgraduate level, universities can (and do) offer full-fee places to domestic teacher education students. This again highlights designation’s limits as a tool for fine-tuned control of student numbers.  (A section 104-10(2) determination removing FEE-HELP eligibility may strengthen the government’s position, but this would leave current full-fee students with upfront fees to pay.)

Standards

It is unlikely that the government would try to regulate teaching courses using anything in the Tertiary Education Quality and Standards Agency (TEQSA) regulated Higher Education Standards Framework.

Part A 1.1 of the Framework covers admissions and focuses on ability to complete the course. Although completion rates increase with ATAR, an ATAR of 80 is not necessary to complete a teaching course or any other course. Other considerations such as the prestige of the teaching profession or even professional suitability are too remote from the issue of course completion to justify regulatory intervention.

Even reworking the Framework to specify professional suitability (another legislative instrument, after a mandated process for drafting) would not give the government direct control.

The Minister can give directions to TEQSA on the performance of its functions and the exercise of its powers. However, these directions must be of a general nature only: section 136 of the TEQSA Act. A specific ATAR is unlikely to be a valid direction.

Conclusion

Directly targeting low ATAR students and capping are not mutually exclusive options. However, overall I think capping is the more likely of the two.

Universities are more likely to resist direct control of admission requirements than capping. Direct control would be a novel interference in university decision-making, to be resisted as much for the broader precedent it sets as for its specific implications for teacher education.

By contrast, universities have had capping for decades and it sets no new precedents. Financially, some universities would come out ahead under capping, which would ease the pain of losing teaching students.

For policymakers, the consequences of capping are more predictable than the consequences of a minimum ATAR. Labor is hoping that a higher-ATAR will raise the prestige of teaching and bring in more high-ATAR applicants. Perhaps it will in the long term, but in the short to medium term it is more likely that the number of school leaver entrants to teacher education would fall dramatically. A huge 12.5 per cent reduction in teacher education acceptances between 2017 and 2018 could be NSW and Victorian government rules on teacher admission requirements biting. And these are not as tough as Labor’s plan.

A big drop in school leaver teaching students could mean one or more of i) a significantly reduced pool of teaching graduates while we still have a baby boom cohort working its way through the school system; b) (ironically) dropping of academic requirements for students with previous higher education to attract additional enrolments and maintain the graduate cohort size required; and c) universities that rely on low-ATAR students facing serious financial difficulties, job losses etc. A slow squeezing of the system via capping would minimise the risk of serious unwanted consequences from a fixed ATAR requirement.

A minimum ATAR would also not deal with the students who enter on some basis other than ATAR, which is most of them for teaching. Teacher enrolment growth in recent years has come from people with previous vocational or higher education. All other things being equal, with fewer student places entry requirements would increase, as universities still mostly allocate places based on past academic performance when demand exceeds supply. This would affect all students, not just the minority being admitted based on their ATAR.

Another possibility is that universities comply voluntarily with the request to radically change teacher entry requirements. I think that is unlikely. They won’t genuinely believe that an 80 ATAR is required and won’t want to devastate their education faculties. Just giving in to ministerial demands, without the government having to put its policies before the parliament, would also set a bad precedent.

We have our first interesting clash between the universities and their likely new minister, come May.

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[1] Currently universities are operating under a maximum payment for non-designated courses, which de facto takes us back to the pre-demand driven block grant system. Universities remain free to distribute student places between disciplines but will only be paid Commonwealth contributions up to the capped amount.