Australian legislation to limit international enrolments is?unlikely to?fail a?court challenge, but its ¡°rushed¡± drafting will produce poor decisions, according to?constitutional lawyer and university leader George Williams.

Professor Williams told a 26?August Senate committee hearing that the law could be?vulnerable under Section?99 of?the Constitution, which precludes the commonwealth from preferencing states over each other. But the federal government¡¯s ¡°consistent formula¡± for determining the caps, revealed the following day, removed that risk.

¡°It¡¯s a generic, nationwide formula,¡± said Professor Williams, who became vice-chancellor of Western Sydney University (WSU) in July. ¡°It¡¯s now very hard to see there would be a constitutional issue because they¡¯ve been consistent, as opposed to picking winners and losers.¡±

This applied even though the formula appeared to have benefited Tasmania while disadvantaging other regions. ¡°There are winners and losers under a?formula. It¡¯s never equal. But as long as it¡¯s a consistent formula applied without¡­state-based differences built?in, then you¡¯re not likely to have a?problem.¡±

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He said the legislation could still be vulnerable to court action on other grounds. Private institutions, for example, could mount a challenge over ¡°acquisition of property¡±.

¡°The bill [has] a clause to deal with that, but I¡¯m sure [private colleges] will be looking carefully, given how much is at stake for them.¡±

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Professor Williams remained concerned that the legislation¡¯s drafting would lead to poor outcomes. He said there appeared to be no?option for WSU to argue for a higher cap on the grounds that it had space to accommodate more foreign students because of a 20?per cent vacancy rate in its residences.

¡°We¡¯ve got a bed for every student, and that doesn¡¯t seem to have been considered, because there¡¯s no?way for it to be considered. The formula doesn¡¯t admit to those other considerations even though they¡¯re driving this whole debate.¡±

He said this could have been averted if housing had been included within the ¡°criteria¡± for decision-making. But the bill lacked criteria, along with a process for involving affected people and reasons for introducing the legislation in the first place.

Professor Williams said these ¡°good practice¡± elements of bills were standard unless they pertained to emergencies such as pandemics ¨C and required ¡°decisive and quick decision-making¡± ¨C or national security issues necessitating secrecy.

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These ¡°well-known exceptions¡­normally wouldn¡¯t apply in higher education¡±, he said. ¡°If you want wise decisions, criteria, process and reasons are very important. [Otherwise] you end up with quite blunt, somewhat arbitrary decision-making.

¡°We¡¯ve got caps even before the act has been enacted. The Senate committee hasn¡¯t even reported. We¡¯re really putting the cart before the horse. It should be done better, given the massive stakes involved.¡±

He said WSU¡¯s allocation of 3,400 international student commencements in 2025 was about 1,000 less than it had forecasted and would cost it about A$26.5?million (?13.6?million) next year. This would deprive the university of money to support ¡°second chance¡± education for locals, Indigenous equity programmes, transnational education initiatives and food pantries for low-income students.

He said a decline in international student numbers also risked undermining local businesses and exacerbating skills shortages in the region.

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john.ross@timeshighereducation.com