Commonwealth Power over Higher Education

Abstract

The regulation of higher education in Australia is undergoing major change, with a largely State-based system being forced to make way for a new national scheme. To this end, in June 2011, the Tertiary Education Quality and Standards Agency Act 2011 (‘TEQSA Act’) was passed by Federal Parliament. It establishes the Tertiary Education Quality and Standards Agency (‘TEQSA’) – a new and independent national regulatory body responsible for oversight of the higher education sector.

TEQSA marks the first step of a ten year federal reform agenda for higher education and research designed to ‘boost Australia’s national productivity and performance as a knowledge-based economy.' The Commonwealth decided to increase its regulatory footprint following the 2008 Review of Higher Education by Professor Denise Bradley. The Review found that significant structural reforms to the financing and regulatory framework of the sector were required in order for Australia to compete globally.

This shift raises important constitutional questions as to the extent to which the Commonwealth can impose a new scheme of regulation on the higher education sector, and universities in particular. In 2006, Professor Greg Craven reached four broad conclusions about the scope of Commonwealth power in this field:

(i) the Commonwealth enjoyed ‘significant direct constitutional power over the area of higher education’;

(ii) the Commonwealth had power to indirectly ‘influence and form higher education policy’, primarily through the ‘conditional funding of universities';

(iii) notwithstanding these conclusions, the Commonwealth lacked the ‘cohesive constitutional power necessary to regulate the higher education sector in any comprehensive way’; and

(iv) as a practical matter, ‘any genuine attempt at national higher education legislation or regulation by the Commonwealth would ... have to be based upon a significant degree of cooperation with the States.'

Five years later, these conclusions are worthy of reconsideration. Craven’s analysis predates the High Court decisions in New South Wales v Commonwealth (Work Choices Case), which applied a broad interpretation of the Commonwealth’s corporations power in s 51(xx) of the Constitution, and Pape v Commissioner of Taxation (‘Pape’), which upset the previously assumed view that the federal appropriations power in s 81 could be applied to spend money on any topic whatsoever.

The TEQSA Act relies primarily upon the corporations power, and so in this article we focus on the decision in the Work Choices Case, and the scope that the Commonwealth now has under s 51(xx) to enact legislation for the higher education sector, and universities in particular. We address this issue after outlining the relevant history of the regulation of higher education in Australia.