International student caps are set to pass parliament, ushering in a new era of bureaucratic control

The federal government’s controversial plan to limit international student numbers is now almost certain to win parliamentary approval. But it looks like there will be some changes to the original bill introduced in May.

A Senate committee, which has a Labor majority, has recommended the bill be passed with amendments. The government is expected to accept the committee’s suggestions.

What did the committee find and what does this mean for caps on international student numbers?

Clashing views in parliament

In the inquiry report, Coalition senators criticised the government’s handling of international education. But they continued to support the idea of putting a limit on international students.

The Greens’ dissenting report completely rejected the idea of caps. The Greens don’t have the Senate numbers to block them, but they may find common ground with the Coalition on some amendments to influence the final outcome.

Changes to caps on courses

The government’s original legislation would let the minister set international student caps by education provider, location and course.

Caps by provider and location are meant to reduce pressure on accommodation and other services, especially in Melbourne, Sydney and Brisbane. This is a key goal of the bill and other recent changes to international student policy.

But course-level enrolment caps are not necessary to achieve this.

As the inquiry report notes, most international students do not stay in Australia permanently. So they should be allowed to choose courses based on their own interests and job opportunities in their home countries.

The report also notes significant administrative issues involved with setting and monitoring caps for the more than 25,000 courses on offer to international students.

But the report does not take these points to the logical conclusion of recommending no caps on courses. Instead, it proposes no course caps for universities or TAFEs. Non-university higher education providers and non-TAFE vocational education providers could still be subject to course-level caps.

After the report was released, Education Minister Jason Clare cited advice about some vocational providers offering courses that “don’t give [students] a real qualification”.

Coalition senators may seek the full removal of course caps from the bill – in the Senate report, they criticise what they call the “appalling treatment of many private higher education and [vocational education and training] providers”. With support from the Greens, course caps could be stopped.

A new power to exempt some categories of students

The government has flagged it wants to exempt students from the Pacific or Timor-Leste and some students on government scholarships from the new cap regime.

That would require amendments to the original bill, which the Senate inquiry also recommends. This change is unlikely to face any Senate obstacles.

An earlier date for announcing caps

The bill requires caps to be announced by September 1 in the year before the caps apply, except for this year when the deadline is December 31.

This date was criticised because international students receive offers before September. Education providers need to know their caps before they start making offers.

The Senate report recommends a July 1 announcement instead.

Huge powers for the minister

As drafted, the bill gives the minister extraordinary personal power to set international student caps. It sets no limit on the reasons for setting caps. It requires no consultation prior to setting caps, other than the minister for education consulting the minister for skills.

The Senate report suggests improvements to this process. The education minister would also need to consult the immigration minister and the regulators for vocational education and higher education.

The report also says education providers should be consulted on the initial setting of enrolment limits each year. With around 1,500 providers registered to offer courses to international students, this consultation may need to be with their representative groups.

More scrutiny for the caps?

The bill has a dual system for setting caps. One of these is via a “legislative instrument”, which the minister makes. This can be disallowed by either house of parliament and is the only limit on the minister’s power.

But the bill also allows the minister to bypass the parliament with a “notice” to education providers. This has the same practical effect as the legislative instrument.

The bill’s explanatory memorandum (the document to help readers understand legislation), offers a benign explanation for this. It says the minister will only exercise the power of using a notice in limited circumstances. Its examples include when the education provider has supplied additional student accommodation, or needs to expand to take students from other providers that have gone out of business.

Nothing in the bill, however, limits the use of capping by notice.

In a submission to the inquiry, I recommended requiring parliamentary scrutiny of the way caps are set. The legislative instrument would set out rules and formulas for calculating the cap. The notice to education providers would have to apply these rules and formulas to their specific circumstances.

The Senate committee majority, however, recommended a much weaker form of scrutiny. It suggested replacing the notice with a “notifiable instrument”. This would ensure the provider’s cap was publicly available. The notices, by contrast, only go to to the affected education provider, the Department of Education, and the relevant regulator.

A notifiable instrument would allow more public scrutiny of the minister’s decisions, for people who keep an eye on the government’s legislation website. But it falls well short of a system in which parliament is always directly notified of caps and given the power to intervene.

A turning point

The Senate inquiry partly answers some criticisms or weaknesses of the bill. It’s likely the bill will next be debated when parliament sits in November.

But whatever views people hold on capping international students – and with the student visa holder population nearing 700,000 there is a case for moderation – we are witnessing a major turning point in higher education.

This bill, in combination with planned controls on domestic student enrolments, signals the demise of student choice and university autonomy. A new era of bureaucratic control from Canberra is arriving.