Successive Commonwealth governments have been creative in finding ways to by-pass the Constitution. That has been very necessary in education, which was originally intended to remain a State responsibility. The Commonwealth has no direct power to legislate on an education topic other than in the territories. This creates legal issues for the Commonwealth’s attempts to ban commercial cheating. Draft legislation was released at the weekend.
The Commonwealth’s main vehicles for education policy have been section 96 tied grants to the States (no longer used for higher education, but still used for school and vocational education), the section 51(xx) power to legislate on foreign, trading and financial corporations (which relies on universities being trading corporations; this power could collapse if they went back to full public funding) and section 51 (xxiiiA), the ‘benefits to students’ power, which is the main legal basis of Youth Allowance, the Commonwealth Grant Scheme, and HELP.
Because the Commonwealth can fully legislate for the territories, the draft bill would be effective in the ACT and the Northern Territory. But in the states the legal situation is more difficult.