Higher Education Act 2004

This Act may be cited as the Higher Education Act 2004.

This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.

The objects of this Act are:

to uphold the standards of education provided by higher education institutions operating in the Territory; and

to maintain public confidence in the higher education sector in the Territory.

The objects are to be achieved mainly by:

establishing a process for the establishment or recognition of universities in the Territory;

providing for the approval of the operation of overseas higher education institutions in the Territory;

providing for the approval of the operation of interstate universities under agency arrangements in the Territory;

providing for the accreditation of higher education courses to be offered by non-university providers;

providing for the approval of higher education institutions to provide higher education courses in the Territory to overseas students; and

limiting the use of a title that consists of, or includes, the word university.

In this Act, unless the contrary intention appears:

accepted representations, for Part 8, has the meaning in section 38(2).

accredit includes re-accredit.

accredited course means a course accredited under section 22.

agency arrangement means an arrangement between an interstate university and an educational institution established in the Territory under which the institution provides a higher education course in the Territory on behalf of the university.

agent, under an agency arrangement, means the educational institution that provides a higher education course under the arrangement.

approved form means a form approved under section 59.

AQF Register means the Register of Recognised Education

Institutions and Authorised Accreditation Authorities in Australia established, under the Australian Qualifications Framework, by the

Australian Qualifications Framework Advisory Board.

Australian Qualifications Framework means the national framework of educational qualifications:

approved by the Ministerial Council; and

stated in the implementation handbook for that framework published by the Australian Qualifications Framework Advisory Board, as in force from time to time.

Australian Qualifications Framework Advisory Board means the board by that name established by the Ministerial Council.

authorised person, for Part 7, means a person authorised under section 32.

Chief Executive Officer means the Chief Executive

Officer, within the meaning of the Public Sector Employment and

Management Act 1993, of the Agency administering this Act.

Commonwealth Act means the Education Services for

Overseas Students Act 2000 of the Commonwealth.

contravene includes fail to comply with.

delivery place, for an agency agreement, means the place at which a higher education course is provided under the agreement.

educational institution means an institution that provides or proposes to provide courses of study.

executive officer, of a body corporate, means a person who is concerned with, or takes part in, the management of the body corporate, (whether or not the person is a director or the person's position is given the name of executive officer), and includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or a State or Territory.

higher education award means:

a degree;

a graduate diploma or graduate certificate;

a diploma or advanced diploma; or

another award described in the Australian Qualifications

Framework as a higher education award.

higher education course means a course of study leading to a higher education award.

higher education institution means an educational institution that provides or proposes to provide a higher education course.

information notice, for a decision of the Minister, means a written notice stating the following:

the decision;

the reasons for the decision;

the person to whom the notice is given may appeal against the decision;

how to start the appeal.

interstate university means a higher education institution that:

is established or recognised as a university under an Act of the

Commonwealth, a State or another Territory; and

is listed in the AQF Register.

Ministerial Council means a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to education.

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

National Protocols means the National Protocols for

Higher Education Approval Processes (first endorsed by the

Ministerial Council on 31 March 2000), as in force from time to time.

non-university provider means a person (other than a university, the Batchelor Institute of

Indigenous Tertiary Education or an overseas higher education institution) providing or proposing to provide a higher education course.

operate, an educational institution in the Territory, includes operate the institution in the Territory by electronic communication.

original decision, for Part 9, has the meaning in section 41.

overseas higher education institution means an educational institution that:

is established and operates in a foreign country; and

offers a course leading to an award recognised as a higher education award by the competent authority for the purpose in the foreign country.

overseas student has the same meaning as in the

Commonwealth Act.

Regulations means the Regulations made under this Act.

show cause notice, for Part 8, has the meaning in section 37(1).

show cause period, for Part 8, has the meaning in section 37(2)(d).

university means a higher education institution:

that is:

established or recognised as a university under an Act and is listed in the AQF Register; or

an interstate university;

that is:

established in a foreign country;

recognised as a university by the competent authority for the purpose in that country; and

approved under section 14 to operate in the Territory; or

that is prescribed by the Regulations to be a university.

This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

Part 2 Establishment and recognition of universities in Territory

The governing body of a higher education institution may apply for the Minister's approval that the institution is suitable to be established or recognised, under an Act, as a university in the

Territory.

The application must:

be made to the Minister in writing; and

be accompanied by the fee prescribed by the Regulations.

After receiving an application under section 6, the Minister must appoint an advisory committee for the application and refer it to the committee.

The committee must consist of at least 3 persons appointed by the Minister.

The Minister may appoint a person to be a member of the committee only if the Minister is satisfied the person has substantial knowledge and experience of:

academic affairs;

university management;

the design, development and provision of higher education courses; or

business management.

The advisory committee must consider whether the institution will comply with the relevant criteria in the National Protocols on its establishment or recognition as a university in the Territory.

For subsection (1), the committee must give public notice of the application and consider submissions made by the public on the application.

The committee may by written notice, require the applicant to give the committee within the reasonable time of at least 14 days stated in the notice further information or a document the committee reasonably requires.

After completing its consideration of the application, the advisory committee must:

give the Minister a written report on the application; and

give the applicant a copy of the report.

The report must contain:

the committee's recommendation about whether the Minister should grant the application; and

any conditions on establishment or recognition recommended by the committee.

The Minister must consider the application and either grant or refuse to grant it.

In considering the application, the Minister must have regard to the advisory committee's report.

However, the Minister is not bound by any recommendation contained in the report.

The Minister may grant the application only if the Minister is satisfied the institution will comply with the relevant criteria in the National Protocols on its establishment or recognition as a university in the Territory.

If the Minister decides to grant the application, the Minister must give the applicant written notice of the decision.

If the Minister decides to refuse to grant the application, the

Minister must give the applicant an information notice for the decision.

The Minister may, in granting the application, decide to impose conditions on the approval that are relevant and reasonable.

If the Minister decides to impose conditions on the approval, the Minister must give the applicant an information notice for the decision.

The Minister may, at any time after the fifth anniversary of the establishment or recognition of a university under an Act, review the university's operation.

The review must involve a consideration of whether the university is complying with the relevant criteria in the National

Protocols.

Part 3 Overseas higher education institutions