Higher Education Act 2001

This Act is the Higher Education Act 2001.

This Act commences on a day or days to be appointed by proclamation.

In this Act:

Australian higher education institution means an education institution that is registered as an Australian higher education institution under Division 1 of Part 2.

Australian institution means:

a company (including a foreign company) that is registered under the Corporations Act 2001 of the Commonwealth, or

any other body corporate constituted in Australia, or

an unincorporated body of persons associated together in Australia, or

any other institution established in Australia.

Australian university means an education institution listed in Part 1 or 2 of Schedule 1.

degree includes a degree of any kind, including an associate degree and, in particular, the degrees of doctor, master and bachelor.

degree course means a course of study that leads to a degree.

Department means the Department of Education.

education institution means:

a company (including a foreign company) that is registered under the Corporations Act 2001 of the Commonwealth, or

any other body corporate constituted in Australia,

that provides or proposes to provide courses of study.

exercise a function includes perform a duty.

function includes a power, authority or duty.

higher education course means a course of study that leads to a higher education qualification.

higher education qualification means:

a degree, or

a post-graduate qualification, or

a diploma or advanced diploma.

National Code means the code established under Part 4 of the Commonwealth Act, as amended from time to time.

National Protocols means the National Protocols for Higher Education Approval Processes (as approved by the Ministerial Council on Education, Employment, Training and Youth Affairs on 7 July 2006), as in force from time to time, and includes any guidelines established under those Protocols.

overseas higher education institution means an education institution that is registered as an overseas higher education institution under Division 1 of Part 2.

overseas student has the same meaning as it has in the Commonwealth Act.

overseas university means an education institution that is registered as an overseas university under Division 1 of Part 2.

post-graduate course means a course of study that leads to a post-graduate qualification.

post-graduate qualification means:

any qualification that is described as a graduate diploma or a graduate certificate, or

any other qualification (other than a degree) that is declared by the regulations to be a post-graduate qualification,

but does not include a graduate diploma or graduate certificate awarded in connection with a person’s successful completion of a VET accredited course within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth.

Secretary means the Secretary of the Department.

the Commonwealth Act means the Education Services for Overseas Students Act 2000 of the Commonwealth.

For the purposes of this Act:

a person represents that a state of affairs exists if the person does or says anything, or causes or allows anything to be done or said, by which it is represented, or by which a belief may be induced, that the state of affairs exists, and

a person provides a course of study if the person enrols or registers students to undertake such a course, provides face-to-face instruction in connection with such a course or provides distance education facilities for the conduct of such a course (for example, facilities for students to undertake such a course by means of post, facsimile or electronic mail).

On the recommendation of the Minister, the Governor may, by proclamation published on the NSW legislation website, amend Schedule 1 so as:

to include the name of an education institution in Part 1 or 2 of that Schedule, or

to vary the name of an education institution listed in Part 1 or 2 of that Schedule as a consequence of any change in its corporate name, or

to omit the name of an education institution from Part 1 or 2 of that Schedule.

A recommendation to include the name of an education institution in Part 1 of Schedule 1 may be given only in relation to an education institution that is established or recognised as a university:

by an Act of the Commonwealth, or

by an Act of this or some other State or Territory.

A recommendation to omit the name of an education institution from Part 1 of Schedule 1 may be given only in relation to an education institution that is no longer established or recognised as a university by an Act referred to in subsection (2) (a) or (b).

In deciding whether to make a recommendation:

to include the name of an education institution in Part 2 of Schedule 1, or

to vary the name of an education institution listed in Part 2 of Schedule 1, or

to omit the name of an education institution from Part 2 of Schedule 1,

the Minister must have regard to the National Protocols, any guidelines made for the purposes of section 19 (1) (a) and any regulations made for the purposes of section 25 (1) (a).

A proclamation is not invalid only because of a failure of the Minister to comply with the requirements of subsection (4).

On the application of an education institution, the Secretary may register the institution:

as an Australian or overseas higher education institution, or

if the Minister so approves, as an overseas university.

An approval referred to in subsection (1) (b) may be given only if the Minister is satisfied that the education institution will be able to operate in New South Wales to a standard no lower than that of Australian universities.

An education institution is to be registered as an overseas university or higher education institution only if it operates as a university or higher education institution in its country of origin.

An education institution is not eligible to be registered under this section as an Australian higher education institution unless at least one course of study is accredited in relation to the institution as a higher education course under Division 2.

Registration may be unconditional or subject to such conditions as the Secretary determines.

In deciding whether to register an education institution, or what conditions to impose on its registration, the Secretary must have regard to the National Protocols.

An education institution’s registration must be reviewed by the Secretary at intervals of not more than 5 years.

The Secretary may at any time:

suspend or cancel an education institution’s registration, or

vary or revoke any condition to which an education institution’s registration is subject, or

impose additional conditions on an education institution’s registration.

The Secretary may suspend or cancel an education institution’s registration only on one or more of the following grounds:

that the institution requests the suspension or cancellation,

that the institution no longer exists,

that the institution has contravened this Act, the regulations or a condition of its registration,

that there is no longer any course of study accredited in relation to the institution under Division 2.

On the application of an education institution that is:

an overseas university or an Australian or overseas higher education institution, or

an applicant for registration as an overseas university or as an Australian or overseas higher education institution,

the Secretary may accredit any course of study to be provided by the institution as a higher education course or may authorise the institution to accredit any such course.

In deciding whether to authorise an education institution to accredit any courses to be provided by the institution, the Secretary must have regard to the National Protocols.

A course of study may be accredited in relation to an education institution only if the Secretary or institution, as the case requires, is satisfied that the course complies with the requirements of the Australian Qualifications Framework.

Accreditation may be unconditional or subject to such conditions as the Secretary or institution, as the case requires, determines.

In deciding whether to accredit a course of study, or what conditions to impose on its accreditation, the Secretary or institution, as the case requires, must have regard to the National Protocols.

Accreditation of a course of study in relation to an education institution must be reviewed by the Secretary or institution, as the case requires, at intervals of not more than 5 years.

In this section, Australian Qualifications Framework means the current edition of the document entitled Australian Qualifications Framework, as published by the Australian Qualifications Framework Advisory Board.

The Secretary may at any time:

suspend or cancel the accreditation of a course of study in relation to an education institution, or

vary or revoke any condition to which the accreditation of a course of study in relation to an education institution is subject, or

impose additional conditions on the accreditation of a course of study in relation to an education institution.

The Secretary may suspend or cancel the accreditation of a course of study in relation to an education institution only on one or more of the following grounds:

that the institution requests the suspension or cancellation,

that the institution no longer exists,

that the institution has contravened this Act, the regulations, or a condition to which accreditation of the course is subject.

For the purposes of the Commonwealth Act, the Secretary is the person responsible for approving providers to provide courses to overseas students in New South Wales.

On the application of an education institution that is:

an Australian or overseas university, or

an Australian or overseas higher education institution,

the Secretary may approve the institution to provide specified courses of study to overseas students.

An approval may be granted in respect of a course of study only if the Secretary is satisfied that the education institution complies with the relevant requirements of the National Code.

In the case of an Australian university, the Secretary is to rely on a statement by the governing body of the university as to the university’s compliance with the relevant requirements of the National Code unless the Secretary has reason to believe that those requirements have not been complied with.

An approval may be granted unconditionally or subject to such conditions as the Secretary determines.

An approval under this Division must be reviewed by the Secretary at intervals of not more than 5 years.

The Secretary may at any time:

suspend or cancel an education institution’s approval, or

vary or revoke any condition to which an education institution’s approval is subject, or

impose additional conditions on an education institution’s approval.

The Secretary may suspend or cancel an education institution’s approval only on one or more of the following grounds:

that the institution requests the suspension or cancellation,

that the institution no longer exists,

that the institution has contravened this Act, the regulations or a condition to which the approval is subject,

that the institution has failed to comply with a requirement of the National Code.

If an Australian university operates outside Australia, and issues higher education qualifications under its own name while so operating, the governing body of the university must ensure that the courses of study it provides while so operating are of a standard no lower than that of comparable courses provided by Australian universities within Australia.

If a course of study is being delivered outside Australia on behalf of, or in the name of, an Australian university, and the organisation delivering the course issues higher education qualifications under the name of the university, the governing body of the university must ensure that:

the quality and standards of the course are comparable with those of the course, as delivered by the university, and

the staff delivering the course have qualifications equivalent to those held by persons delivering the course in Australia, and

the organisation has appropriate financial and other arrangements in place to ensure successful delivery of the course.