Earlier this year I wrote a couple of blog posts on the 2024 university-Commonwealth funding agreements signed late last year. Revised agreements were signed in May 2024. These agreements include new rules on early offers. This post argues that early offers rules should be legislated separately and not included as a condition of Commonwealth Grant Scheme funding.

Restrictions on school leaver early offers

As foreshadowed by the minister in February, university funding agreements now restrict school leaver early offers. The basic rules are 1) No offers to Year 11 students; 2) No offers to Year 12 students prior to September; and 3) Offers must be conditional on successful completion of a senior secondary certificate of education.

A general provision states that offers to ‘at-school students must respect and support the integrity of the successful completion of senior secondary education’. The policy change was motivated by school complaints that students with early offers were slacking off and disrupting other students.

It’s a pity that the debate on early offers has occurred in an information vacuum. I would like to see careful analysis of school results (including of the Year 12 students who don’t have an early offer but may be disrupted by other students who do), numbers of early offers and their acceptance rates, and the number of early offer recipients who use the main round of offers to get a higher preference course. FWIW I think something like this policy is probably for the better, but the evidence for and against is largely anecdotal.

Using funding agreements as de facto legislative instruments

Although restrictions on early offers may be beneficial, this is an example of using funding agreements as de facto legislative instruments.

In recent years many universities have made early offers contrary to the new rules. This makes it unlikely that the new rules reflect genuine agreement by universities to curb early offers. The funding agreement early offers provisions are regulations rather than agreements. As such they should go though a proper parliamentary process. At minimum, regulation should be through a legislative instrument that is tabled in each house of parliament and can be disallowed.

This use of funding agreements is not illegal. The Higher Education Support Act 2003 includes a broad provision for adding conditions to the agreements: section 30-25(2). But it is poor practice. The funding agreements should focus on matters that necessarily differ between universities, such as maximum funding amounts and numbers of student places.

Who regulates admissions?

In the 2010s TEQSA regulated admissions, apart from a requirement that CSPs be allocated on ‘merit’. Since then, however, we have developed a split system, with the threshold standards administered by TEQSA regulating admission to a course and the Department of Education regulating admission to a subject.

The new funding agreements acknowledge the status of the threshold standards, but also say that:

‘The provider’s admission practices must ensure that students admitted are capable of succeeding academically, with appropriate support as required.’

This sentence creates ambiguity. Is it just a paraphrase of the threshold standards requirement (below) or does it add something new? The main wording difference is around support. The threshold standards require support for enrolled students, but the funding agreements more explicitly acknowledge that the available support is relevant contextual information in determining whether an applicant is ‘capable of succeeding academically’.

‘Admissions policies, requirements and procedures are … designed to ensure that admitted students have the academic preparation and proficiency in English needed to participate in their intended study, and no known limitations that would be expected to impede their progression and completion’: Part A, section 1.1.

How should admissions policies be developed?

According to the new funding agreements, the ‘provider’s admissions policies and practices must be evidence-based, transparent and publicly defensible’.

This provision overlaps with an existing funding agreement provision around admissions transparency (clause 7 in the funding agreement pro forma) and, directly or impliedly, with the threshold standards. These require providers to keep track of retention, progression and completion rates by student cohort (section 1.3.6), with evidence on student progress and success linked to admissions policies and course design (section 5.3.7) and admissions policies for equity students (section 2.2.3)

The only clearly novel part of the funding agreement provision is that admissions policies and practices be ‘publicly defensible’, rather than (as now) defensible to TEQSA. Who decides what is ‘publicly defensible’?

The current funding agreement style creates problems

Admissions ambiguity is, in part, a by-product of the new style of funding agreements introduced in 2021. These include more general content than previously. As I said at the time, while this can helpfully put key information in one place it also makes the legal status of funding agreement content less clear.

Do universities now have two sets of course admissions rules, with slightly different requirements, different regulators, and different penalty regimes? Or is there just an additional restriction on the the timing of school leaver offers, with the rest of the new text just a 6/10 marks paraphrase of the rules in place before these funding agreements were signed?

A better legal process

General admissions processes should be governed by one set of legal rules. These rules should not contain any other content, except for the notes that appear in legislation to guide interpretation or alert readers to other relevant provisions.

The general admissions rules should be made under the TEQSA Act 2011 rather than, as with the funding agreements, the Higher Education Support Act 2003.

Use of the TEQSA Act 2011 is preferable because under its framework rules made by the minister must be general rather than for specific institutions, because admissions rules should be integrated with course accreditation and teaching rules, and because the HESA 2003 funding agreements only cover higher education providers receiving Commonwealth Grant Scheme funds. The pathway colleges that teach some first year students for public universities are outside the current early offer rules, as are most other private higher education providers.

Whether early offers rules are in the TEQSA Act 2011 itself or are delegated legislation under that Act there would be a better process and outcome.

The rules would be drafted by professional writers of legislation who are alert to the need for legal clarity.

Both the wording of the rules and their substantive merit would then be subject to parliamentary review. The early offers provisions show again that universities cannot, or will not, negotiate funding agreements when so much of their funding is at stake. They need the protection of the parliament.

Once legislated, the early offers rules would then be in place until amended or repealed rather than, as now, until the expiry of the funding agreements on 31 December 2025.

Conclusion

While the early offers policy does not seem unreasonable in itself, the way it has been implemented is part of a very concerning pattern. Rules-based policies are being replaced with policies based on ministerial and/or departmental discretion – most egregiously in the proposal for the minister to personally decide international student numbers at a course and institution level, but also in the micro-allocation of student places and the dubious equity plan policy spending unutilised CGS money (of which more in another post).