Higher Education Act 2004 (Northern Territory)

This Act creates the Northern Territory statutory framework for authorising entities to operate as universities and for regulating non-university higher education providers, interstate universities operating under agency arrangements, overseas higher education institutions, and provision of courses to overseas students. Its stated objects are to uphold standards of higher education in the Territory and to maintain public confidence in the sector (s 3). The Act achieves those objects primarily through a licensing and accreditation architecture: applications, conditions, periodic review, cancellation processes with a show cause mechanism, and criminal sanctions for unauthorised activity (Parts 2-11).

Mechanically the Act does the following (selection of operative mechanics, with sections cited): it permits a governing body to apply for approval that an institution be established or recognised as a Territory university (s 6); requires ministerial appointment of an advisory committee to consider NT university applications (ss 7-9) and allows the Minister to make the final decision having regard to the advisory committee report but not being bound by it (s 10); provides for approval of overseas higher education institutions to operate in the Territory on application with documentary and fee requirements (ss 13-16) and a maximum term of up to five years for such approvals (s 16); enables interstate universities to operate via agency arrangements subject to an application that must include agent and delivery-place details and a written undertaking by the university about compliance with the National Protocols (ss 18-20); creates a route for non-university providers to seek accreditation for higher education courses (ss 21-25) and requires annual reporting by accredited non-university providers (s 26); and sets out the process for approval to provide courses to overseas students, which must satisfy the National Code (ss 27-31). The Act also authorises compliance visits to premises (Part 7, ss 32-35), prescribes grounds and procedures for cancellation (Part 8, ss 36-40), permits appeals to the Supreme Court from certain decisions (Part 9, ss 41-43), and establishes criminal offences for unauthorised representations and conduct (Part 10, ss 44-52).

NORTHERN TERRITORY OF AUSTRALIA HIGHER EDUCATION ACT 2004 As in force at 21 April 2023 Table of provisions Part 1 Preliminary 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Objects of Act .................................................................................. 1 4 Definitions ........................................................................................ 2 5 Act binds Crown .............................................................................. 5 Part 2 Establishment and recognition of universities in Territory 6 Application for approval of NT university ......................................... 5 7 Referral of application to advisory committee .................................. 5 8 Consideration by advisory committee .............................................. 6 9 Advisory committee to report to Minister ......................................... 6 10 Decision on application .................................................................... 6 11 Conditions of approval ..................................................................... 7 12 Reviews of operations of university ................................................. 7 Part 3 Overseas higher education institutions 13 Application for approval to operate in Territory ................................ 7 14 Decision on application .................................................................... 8 15 Conditions of approval ..................................................................... 8 16 Duration of approval ........................................................................ 8 17 Renewal of approval ........................................................................ 8 Part 4 Interstate universities 18 Application for approval to operate in Territory ................................ 9 19 Decision on application .................................................................... 9 20 Conditions of approval ..................................................................... 9 Part 5 Accreditation of higher education courses offered by non-university providers 21 Application for accreditation........................................................... 10 22 Decision on application .................................................................. 10 23 Conditions of accreditation ............................................................ 10 24 Duration of accreditation ................................................................ 11 25 Amending and adding conditions................................................... 11

Higher Education Act 2004 ii 26 Annual report ................................................................................. 12 Part 6 Provision of higher education courses to overseas students 27 Application for approval to provide course to overseas students ......................................................................................... 12 28 Decision on application .................................................................. 12 29 Conditions of approval ................................................................... 13 30 Duration of approval ...................................................................... 13 31 Renewal of approval ...................................................................... 13 Part 7 Visits by authorised persons 32 Authorisation to visit premises of educational institution ................ 13 33 Powers of authorised person ......................................................... 14 34 Production of authorisation ............................................................ 14 35 Obstruction etc. of authorised person ............................................ 14 Part 8 Cancellation of approvals and accreditations 36 Grounds for cancellation of approval or accreditation.................... 14 37 Show cause notice ........................................................................ 15 38 Representations about show cause notice .................................... 16 39 Ending show cause process without further action ........................ 16 40 Cancellation ................................................................................... 16 Part 9 Appeals 41 Appeals against certain decisions ................................................. 17 42 How to start appeal........................................................................ 17 43 Decision on appeal ........................................................................ 17 Part 10 Offences and legal proceedings Division 1 Offences 44 Operating university ....................................................................... 18 45 Use of university ............................................................................ 18 46 Overseas higher education institution to be approved ................... 19 47 Offering accredited course............................................................. 19 48 Conferring of higher education award by overseas higher education institution etc. ................................................................ 19 49 Conferring of higher education award without course being undertaken..................................................................................... 20 50 Conferring of higher education award by non-university provider etc. ................................................................................... 20

Higher Education Act 2004 iii 51 Conferring of higher education award by interstate university etc. ................................................................................................. 21 52 False or misleading information ..................................................... 21 Division 2 Legal proceedings 53 Evidentiary provisions .................................................................... 22 54 Conduct of representatives ............................................................ 22 Part 11 Miscellaneous provisions 56 When notice to be given ................................................................ 23 57 Register of approvals and accreditations....................................... 23 58 Protection from liability .................................................................. 25 59 Approved forms ............................................................................. 25 60 Delegation ..................................................................................... 25 61 Guidelines...................................................................................... 26 62 Regulations.................................................................................... 26 ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 21 April 2023

HIGHER EDUCATION ACT 2004 An Act about approvals and accreditations for providing higher education in the territory Part 1 Preliminary 1 Short title This Act may be cited as the Higher Education Act 2004. 2 Commencement This Act comes into operation on the date fixed by the Administrator by notice in the Gazette. 3 Objects of Act (1) The objects of this Act are: (a) to uphold the standards of education provided by higher education institutions operating in the Territory; and (b) to maintain public confidence in the higher education sector in the Territory. (2) The objects are to be achieved mainly by: (a) establishing a process for the establishment or recognition of universities in the Territory; (b) providing for the approval of the operation of overseas higher education institutions in the Territory; (c) providing for the approval of the operation of interstate universities under agency arrangements in the Territory; (d) providing for the accreditation of higher education courses to be offered by non-university providers;

Part 1 Preliminary Higher Education Act 2004 2 (e) providing for the approval of higher education institutions to provide higher education courses in the Territory to overseas students; and (f) limiting the use of a title that consists of, or includes, the word university. 4 Definitions 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: (a) approved by the Ministerial Council; and (b) 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.

Part 1 Preliminary Higher Education Act 2004 3 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) a degree; (b) a graduate diploma or graduate certificate; (c) a diploma or advanced diploma; or (d) 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: (a) the decision; (b) the reasons for the decision; (c) the person to whom the notice is given may appeal against the decision; (d) how to start the appeal.

Part 1 Preliminary Higher Education Act 2004 4 interstate university means a higher education institution that: (a) is established or recognised as a university under an Act of the Commonwealth, a State or another Territory; and (b) 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: (a) is established and operates in a foreign country; and (b) 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).

Part 2 Establishment and recognition of universities in Territory Higher Education Act 2004 5 university means a higher education institution: (a) that is: (i) established or recognised as a university under an Act and is listed in the AQF Register; or (ii) an interstate university; (b) that is: (i) established in a foreign country; (ii) recognised as a university by the competent authority for the purpose in that country; and (iii) approved under section 14 to operate in the Territory; or (c) that is prescribed by the Regulations to be a university. 5 Act binds Crown 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 6 Application for approval of NT university (1) 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. (2) The application must: (a) be made to the Minister in writing; and (b) be accompanied by the fee prescribed by the Regulations. 7 Referral of application to advisory committee (1) After receiving an application under section 6, the Minister must appoint an advisory committee for the application and refer it to the committee. (2) The committee must consist of at least 3 persons appointed by the Minister.

Part 2 Establishment and recognition of universities in Territory Higher Education Act 2004 6 (3) 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: (a) academic affairs; (b) university management; (c) the design, development and provision of higher education courses; or (d) business management. 8 Consideration by advisory committee (1) 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. (2) For subsection (1), the committee must give public notice of the application and consider submissions made by the public on the application. (3) 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. 9 Advisory committee to report to Minister (1) After completing its consideration of the application, the advisory committee must: (a) give the Minister a written report on the application; and (b) give the applicant a copy of the report. (2) The report must contain: (a) the committee's recommendation about whether the Minister should grant the application; and (b) any conditions on establishment or recognition recommended by the committee. 10 Decision on application (1) The Minister must consider the application and either grant or refuse to grant it.

Part 3 Overseas higher education institutions Higher Education Act 2004 7 (2) In considering the application, the Minister must have regard to the advisory committee's report. (3) However, the Minister is not bound by any recommendation contained in the report. (4) 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. (5) If the Minister decides to grant the application, the Minister must give the applicant written notice of the decision. (6) If the Minister decides to refuse to grant the application, the Minister must give the applicant an information notice for the decision. 11 Conditions of approval (1) The Minister may, in granting the application, decide to impose conditions on the approval that are relevant and reasonable. (2) If the Minister decides to impose conditions on the approval, the Minister must give the applicant an information notice for the decision. 12 Reviews of operations of university (1) 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. (2) 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 13 Application for approval to operate in Territory (1) The governing body of an overseas higher education institution may apply for the Minister's approval to enable the institution to operate in the Territory. (2) The application must: (a) be made to the Minister in writing; and

Part 3 Overseas higher education institutions Higher Education Act 2004 8 (b) be accompanied by: (i) sufficient documents and information to enable the Minister to decide the application; and (ii) the fee prescribed by the Regulations. 14 Decision on application (1) The Minister must consider the application and either grant or refuse to grant it. (2) The Minister may grant the application only if the Minister is satisfied the institution complies with the relevant criteria in the National Protocols. (3) If the Minister decides to grant the application, the Minister must give the applicant written notice of the decision. (4) The notice must state the higher education courses the institution is authorised to offer under the approval. (5) If the Minister decides to refuse to grant the application, the Minister must give the applicant an information notice for the decision. 15 Conditions of approval (1) The Minister may, in granting the application, decide to impose conditions on the approval that are relevant and reasonable. (2) If the Minister decides to impose conditions on the approval, the Minister must give the applicant an information notice for the decision. 16 Duration of approval The approval remains in force for the period of up to 5 years stated in the notice given to the applicant under section 14(3). 17 Renewal of approval (1) The holder of an approval under section 14 may apply to the Minister for its renewal. (2) The application must be made at least 9 months before the day the approval ends. (3) Sections 13 to 16 (inclusive) apply (with the necessary changes) in relation to the application as if it were an application for an approval.

Part 4 Interstate universities Higher Education Act 2004 9 (4) In addition, for deciding the application, the Minister may examine the operation of the overseas higher education institution in the Territory. Part 4 Interstate universities 18 Application for approval to operate in Territory (1) The governing body of an interstate university may apply for the Minister's approval to enable the university to operate in the Territory under an agency arrangement. (2) The application must: (a) be made to the Minister in writing; and (b) be accompanied by: (i) the name and address of the agent under the arrangement; (ii) the address of the delivery place under the arrangement; and (iii) a written undertaking by the university that it will ensure the provision of a higher education course under the arrangement complies with the relevant criteria in the National Protocols. 19 Decision on application (1) If the Minister is satisfied the application strictly complies with section 18(2), the Minister must: (a) grant the application; and (b) give the applicant notice that the application is granted. (2) If the Minister is satisfied the application does not strictly comply with section 18(2), the Minister must: (a) refuse the application; and (b) give the applicant an information notice for the decision. 20 Conditions of approval (1) The Minister may, in granting the application, decide to impose conditions on the approval that are relevant and reasonable.

Part 5 Accreditation of higher education courses offered by non-university providers Higher Education Act 2004 10 (2) If the Minister decides to impose conditions on the approval, the Minister must give the applicant an information notice for the decision. Part 5 Accreditation of higher education courses offered by non-university providers 21 Application for accreditation (1) The governing body of a non-university provider may apply for accreditation of a higher education course proposed to be offered by the provider. (2) The application must: (a) be made to the Minister in writing; and (b) be accompanied by: (i) sufficient documents and information to enable the Minister to decide the application; and (ii) the fee prescribed by the Regulations. 22 Decision on application (1) The Minister must consider the application and either grant or refuse to grant it. (2) The Minister may grant the application only if the Minister is satisfied, having regard to the relevant criteria in the National Protocols, the course and the way of providing it are appropriate to the type of the award to which the course leads. (3) In deciding the application, the Minister may examine the operation or proposed operation of the provider. (4) If the Minister decides to grant the application, the Minister must give the applicant written notice of the decision. (5) If the Minister decides to refuse to grant the application, the Minister must give the applicant an information notice for the decision. 23 Conditions of accreditation (1) The Minister may, in granting the application, decide to impose conditions on the accreditation that are relevant and reasonable.

Part 5 Accreditation of higher education courses offered by non-university providers Higher Education Act 2004 11 (2) If the Minister decides to impose conditions on the accreditation, the Minister must give the applicant an information notice for the decision. 24 Duration of accreditation The accreditation remains in force for the period of up to 5 years stated in the notice given to the applicant under section 22(4). 25 Amending and adding conditions (1) The Minister may amend the conditions of the accreditation of an accredited course imposed by the Minister if there is a reasonable basis to make the amendment. (2) Before deciding to amend the conditions, the Minister must: (a) give written notice to the holder of the accreditation: (i) of the particulars of the proposed amendment; and (ii) that the holder may make written submissions to the Minister about the proposed amendment within a reasonable period of at least 21 days stated in the notice; and (b) have regard to written submissions made to the Minister by the holder before the end of the stated period. (3) If the Minister decides to amend the conditions, the Minister must give the holder an information notice for the decision. (4) The decision does not take effect until: (a) the end of the time for starting an appeal against the decision; or (b) if an appeal against the decision is started – the decision on the appeal is confirmed or the appeal is discontinued or struck out. (5) The Minister's power under subsection (1) includes power to add conditions to the accreditation of an accredited course that is not subject to conditions imposed by the Minister.

Part 6 Provision of higher education courses to overseas students Higher Education Act 2004 12 26 Annual report (1) A non-university provider offering an accredited course must, on or before 31 May in each year (the reporting day), give the Minister a written report for the period from the 1 January to the 31 December immediately before the reporting day that complies with subsection (2). (2) The report must contain information about the course, and the way of providing it, that will enable the Minister to decide, having regard to the relevant criteria in the National Protocols, whether continued accreditation of the course is justified. Part 6 Provision of higher education courses to overseas students 27 Application for approval to provide course to overseas students (1) The governing body of a higher education institution may apply for the Minister's approval to enable the institution to provide higher education courses in the Territory to overseas students. (2) The application must: (a) be made to the Minister in writing; and (b) be accompanied by: (i) sufficient documents and information to enable the Minister to decide the application; and (ii) the fee prescribed by the Regulations. 28 Decision on application (1) The Minister must consider the application and either grant or refuse to grant it. (2) The Minister may grant the application only if the Minister is satisfied the institution complies with the requirements of the National Code. (3) If the Minister decides to grant the application, the Minister must give the applicant written notice of the decision. (4) The notice must state the higher education courses the institution is authorised to provide to overseas students under the approval.

Part 7 Visits by authorised persons Higher Education Act 2004 13 (5) If the Minister decides to refuse to grant the application, the Minister must give the applicant an information notice for the decision. 29 Conditions of approval (1) The Minister may, in granting the application, decide to impose conditions on the approval that are relevant and reasonable. (2) If the Minister decides to impose conditions on the approval, the Minister must give the applicant an information notice for the decision. 30 Duration of approval The approval remains in force for the period of up to 5 years stated in the notice given to the applicant under section 28(3). 31 Renewal of approval (1) The holder of an approval under section 28 may apply to the Minister for its renewal. (2) The application must be made at least 6 months before the day the approval ends. (3) Sections 27 to 30 (inclusive) apply (with the necessary changes) in relation to the application as if it were an application for an approval. (4) In addition, for deciding the application, the Minister may examine the operation of the higher education institution in the Territory. Part 7 Visits by authorised persons 32 Authorisation to visit premises of educational institution (1) For ensuring compliance with the relevant criteria in the National Protocols or requirements of the National Code, the Minister may authorise a person to visit premises in the Territory where an educational institution is providing or proposing to provide higher education courses. (2) The authorisation must be in writing and state the address of the institution's premises to be visited.

Part 8 Cancellation of approvals and accreditations Higher Education Act 2004 14 33 Powers of authorised person (1) An authorised person may enter the premises of the educational institution stated in the person's authorisation at any reasonable time on any day higher education courses are normally provided on the premises. (2) On entering the premises, the authorised person may exercise any of the following powers: (a) observe the institution's operations; (b) require any person to give information about the institution's operations; (c) inspect or take copies of any documents kept on the premises; (d) require any person to give the person any assistance reasonably necessary for exercising the power under paragraph (c). 34 Production of authorisation An authorised person exercising a power under section 33 in relation to a person must, if asked by the person, produce the authorised person's authorisation for inspection. 35 Obstruction etc. of authorised person (1) A person must not, without reasonable excuse, obstruct an authorised person in the exercise of an authorised person's powers under section 33. Maximum penalty: 10 penalty units. (2) In this section: obstruct includes hinder and resist. Part 8 Cancellation of approvals and accreditations 36 Grounds for cancellation of approval or accreditation (1) Each of the following is a ground for cancelling an approval under section 14 for an overseas higher education institution to operate in the Territory: (a) the holder of the approval has contravened a condition of the approval;

Part 8 Cancellation of approvals and accreditations Higher Education Act 2004 15 (b) the holder of the approval is not complying, or has not complied, with the relevant criteria in the National Protocols. (2) Each of the following is a ground for cancelling an approval under section 19 for an interstate university to operate under an agency arrangement in the Territory: (a) the holder of the approval has contravened a condition of the approval; (b) the provision of a higher education course under the agency arrangement is not complying, or has not complied, with the relevant criteria in the National Protocols. (3) Each of the following is a ground for cancelling an accreditation of an accredited course: (a) the holder of the accreditation has contravened a condition of the accreditation; (b) having regard to the relevant criteria in the National Protocols, the course and the way of providing it are no longer appropriate to the type of the award to which the course leads; (c) the holder of the accreditation does not provide an annual report for the course under section 26. (4) Each of the following is a ground for cancelling an approval under section 28 for a higher education institution to provide higher education courses in the Territory to overseas students: (a) the holder of the approval has contravened a condition of the approval; (b) the holder of the approval is not complying, or has not complied, with the requirements of the National Code. 37 Show cause notice (1) If the Minister reasonably believes a ground exists to cancel an approval or accreditation, the Minister must give the holder of the approval or accreditation written notice under this section (a show cause notice). (2) The show cause notice must state the following: (a) the action (the proposed action) the Minister proposes taking; (b) the ground for the proposed action;

Part 8 Cancellation of approvals and accreditations Higher Education Act 2004 16 (c) an outline of the facts and circumstances forming the basis for the ground; (d) an invitation to the holder to show within a stated period (the show cause period) why the proposed action should not be taken. (3) The show cause period must end at least 30 days after the show cause notice is given to the holder. 38 Representations about show cause notice (1) The holder of the approval or accreditation may make written representations about the show cause notice to the Minister in the show cause period. (2) The Minister must consider all written representations (the accepted representations) made under subsection (1). 39 Ending show cause process without further action If, after considering the accepted representations for the show cause notice, the Minister no longer believes the ground exists to cancel the approval or accreditation, the Minister: (a) must not take further action about the show cause notice; and (b) must give notice to the holder of the approval or accreditation that no further action will be taken about the show cause notice. 40 Cancellation (1) This section applies if: (a) after considering the accepted representations for the show cause notice, the Minister: (i) still believes the ground exists to cancel the approval or accreditation; and (ii) believes cancellation of the approval or accreditation is warranted; or (b) there are no accepted representations for the show cause notice. (2) The Minister may decide to cancel the approval or accreditation. (3) The Minister must give an information notice for the decision to the holder of the approval or accreditation.

Part 9 Appeals Higher Education Act 2004 17 (4) The decision does not take effect until: (a) the end of the time for starting an appeal against the decision; or (b) if an appeal against the decision is started – the decision on the appeal is confirmed or the appeal is discontinued or struck out. Part 9 Appeals 41 Appeals against certain decisions (1) A person who is given, or is entitled to be given, an information notice for a decision (the original decision) may appeal against the decision to the Supreme Court. (2) The appeal is an appeal in the strict sense. 42 How to start appeal (1) The appeal is started by filing notice of appeal with the Registrar of the Supreme Court. (2) The notice must be filed within 28 days after: (a) if the person receives an information notice for the original decision – the day the person receives the notice; or (b) if paragraph (a) does not apply – the day the person becomes aware of the original decision. 43 Decision on appeal (1) In deciding the appeal, the Supreme Court may: (a) confirm or vary the original decision; (b) set aside the original decision and substitute its own decision; or (c) set aside the original decision and remit the matter to the Minister with the directions it considers appropriate. (2) For subsection (1), the Court may make the orders and give the directions it considers appropriate.

Part 10 Offences and legal proceedings Division 1 Offences Higher Education Act 2004 18 (3) If the Court varies the original decision or substitutes its own decision for the original decision, the varied or substituted decision is, for this Act (other than this Part), taken to be the Minister's decision. Part 10 Offences and legal proceedings Division 1 Offences 44 Operating university (1) A person must not operate, or purport to operate, in the Territory as a university or part of a university unless the person is a university. Maximum penalty: If the offender is a natural person – 500 penalty units. If the offender is a body corporate – 2 500 penalty units. (2) A person must not hold out an educational institution, educational facility, school, college or other place that provides a course of education as being a university unless it is a university. Maximum penalty: If the offender is a natural person – 500 penalty units. If the offender is a body corporate – 2 500 penalty units. 45 Use of university (1) A person must not, by use of a title consisting of, or including, the word university, claim the person is a university or part of a university unless the person is a university or part of a university. Maximum penalty: If the offender is a natural person – 500 penalty units. If the offender is a body corporate – 2 500 penalty units. (2) For subsection (1), a person claims to be a university or part of a university if the person: (a) makes the claim; or (b) says or does anything likely to induce someone else to believe the person is a university or part of a university.

Part 10 Offences and legal proceedings Division 1 Offences Higher Education Act 2004 19 (3) This section does not apply to an educational institution prescribed by the Regulations. 46 Overseas higher education institution to be approved A person must not operate an overseas higher education institution in the Territory unless the person has an approval under section 14. Maximum penalty: If the offender is a natural person – 500 penalty units. If the offender is a body corporate – 2 500 penalty units. 47 Offering accredited course A non-university provider must not offer a higher education course in the Territory unless the course is an accredited course. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. 48 Conferring of higher education award by overseas higher education institution etc. (1) An overseas higher education institution must not confer, or hold out that the institution is authorised to confer, a higher education award unless: (a) the institution is the subject of an approval under section 14; and (b) under the approval, the institution may offer the course leading to the award. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. (2) A person must not hold out that an overseas higher education institution is authorised to confer a higher education award unless: (a) the institution is the subject of an approval under section 14; and

Part 10 Offences and legal proceedings Division 1 Offences Higher Education Act 2004 20 (b) under the approval, the institution may offer the course leading to the award. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. 49 Conferring of higher education award without course being undertaken A person, other than a university or the Batchelor Institute of Indigenous Tertiary Education, must not confer a higher education award on another person unless the other person has undertaken a course leading to the award. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. 50 Conferring of higher education award by non-university provider etc. (1) A non-university provider must not confer, or hold out that the provider is authorised to confer, a higher education award unless the course leading to the award is an accredited course for the provider. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. (2) A person must not hold out that a non-university provider is authorised to confer a higher education award unless the course leading to the award is an accredited course for the provider. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units.

Part 10 Offences and legal proceedings Division 1 Offences Higher Education Act 2004 21 51 Conferring of higher education award by interstate university etc. (1) An interstate university operating in the Territory under an agency arrangement must not confer, or hold out that the university is authorised to confer, a higher education award unless it is authorised under an approval under section 19 to offer the course leading to the award. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. (2) A person must not hold out that an interstate university operating in the Territory under an agency arrangement is authorised to confer a higher education award unless it is authorised under an approval under section 19 to offer the course leading to the award. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. 52 False or misleading information (1) A person must not, in relation to an application under this Act, make a statement that the person knows to be false or misleading in a material particular. Maximum penalty: If the offender is a natural person – 200 penalty units. If the offender is a body corporate – 1 000 penalty units. (2) It is enough for a complaint against a person for an offence against subsection (1) to state the statement was, without specifying which, false or misleading to the person's knowledge. (3) In this section: false or misleading includes false or misleading because of the omission of a statement.

Part 10 Offences and legal proceedings Division 2 Legal proceedings Higher Education Act 2004 22 Division 2 Legal proceedings 53 Evidentiary provisions (1) This section applies to a legal proceeding under this Act. (2) A signature purporting to be the signature of the Chief Executive Officer is evidence of the signature it purports to be. (3) A certificate purporting to be signed by the Chief Executive Officer stating any of the following matters is evidence of the matter: (a) a document is, or is a copy of, an approval, accreditation or notice given under this Act; (b) an approval or accreditation given under this Act: (i) was or was not given for a term; (ii) was or was not in force on a day or during a period; (iii) was or was not subject to conditions; or (iv) was cancelled on a day; (c) a person was given a notice on a day; (d) a matter prescribed by the Regulations. (4) In subsection (3), a reference to a person or thing is a reference to a person or thing stated in the certificate. 54 Conduct of representatives (1) If, in a proceeding for an offence against this Act, it is necessary to establish a person's state of mind in relation to particular conduct, it is sufficient to show: (a) the conduct was engaged in by a representative of the person within the scope of the representative's actual or apparent authority; and (b) the representative had that state of mind. (2) For a proceeding for an offence against this Act, conduct engaged in on behalf of a person by a representative within the scope of the representative's actual or apparent authority is taken to have been engaged in also by the person.

Part 11 Miscellaneous provisions Higher Education Act 2004 23 (3) However, a natural person is not liable to be punished by imprisonment for an offence against this Act if the person would not have been found guilty of the offence if subsection (1) or (2) had not been enacted. (4) In this section: engaging in conduct includes failing or refusing to engage in conduct. representative means: (a) of a body corporate – an executive officer, employee or agent of the body corporate; or (b) of a natural person – an employee or agent of the person. state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. Part 11 Miscellaneous provisions 56 When notice to be given If under this Act the Minister is required to give notice about a decision, the Minister must give the notice as soon as practicable after making the decision. 57 Register of approvals and accreditations (1) The Chief Executive Officer must keep a register of: (a) approvals under sections 14, 19 and 28; and (b) accredited courses. (2) The register may be kept in the way the Chief Executive Officer considers appropriate, including for example, in an electronic form. (3) The register must contain the following details for each approval under section 14 for an overseas higher education institution to operate in the Territory: (a) the name of the institution;

Part 11 Miscellaneous provisions Higher Education Act 2004 24 (b) the name and address of the holder of the approval; (c) the address of the premises at which the institution is approved to operate in the Territory; (d) the title of each course the institution is authorised to offer in the Territory under the approval; (e) if the course is to be provided by an agent of the institution – the name and address of the agent; (f) the last day of the term of the approval; (g) details prescribed by the Regulations. (4) The register must contain the following details for each approval under section 19 for an interstate university to operate under an agency arrangement in the Territory: (a) the name of the university; (b) the name and address of the holder of the approval; (c) the name and address of the agent under the agency arrangement; (d) the address of the delivery place under the arrangement; (e) the title of the higher education course the agent provides in the Territory on behalf of the university under the arrangement; (f) details prescribed by the Regulations. (5) The register must contain the following details for each accredited course: (a) the name of the course; (b) the last day of the term of accreditation of the course; (c) the name and address of the holder of the accreditation; (d) details prescribed by the Regulations. (6) The register must contain the following details for each approval under section 28 for a higher education institution to provide higher education courses in the Territory to overseas students: (a) the name of the institution;

Part 11 Miscellaneous provisions Higher Education Act 2004 25 (b) the name and address of the holder of the approval; (c) the address of the premises at which the institution is approved to provide each course in the Territory; (d) the title of each course the institution is authorised to provide in the Territory under the approval; (e) the last day of the term of the approval; (f) details prescribed by the Regulations. (7) The Chief Executive Officer must: (a) keep the register open for inspection, on payment of the fee prescribed by the Regulations, at the head office of the Agency administering this Act by members of the public during ordinary office hours; and (b) give a person a copy of the register, or a part of it, on payment of the fee prescribed by the Regulations. 58 Protection from liability (1) This section applies to a person who is or has been: (a) the Minister; or (b) an authorised person under Part 7. (2) The person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act. (3) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission. 59 Approved forms The Chief Executive Officer may approve forms for use under this Act. 60 Delegation (1) The Minister may, in writing, delegate to a person any of the Minister's powers or functions under this Act. (2) However, the Minister may delegate a power or function only to a person the Minister is satisfied has the appropriate qualifications or experience to exercise the power or perform the function.

Part 11 Miscellaneous provisions Higher Education Act 2004 26 61 Guidelines (1) The Minister may issue guidelines for the administration of this Act. (2) Without limiting subsection (1), a guideline may give guidance about administrative matters relevant to applications under this Act. (3) Guidelines may apply, adopt or incorporate (wholly or partly and with or without modification) a document as in force at a particular time or from time to time. (4) The Minister must publish notice in the Gazette of the issue of guidelines. (5) The notice must state where copies of issued guidelines may be inspected during normal business hours. (6) The Minister must ensure copies of issued guidelines are available for inspection, free of charge, at the place stated in the notice. 62 Regulations (1) The Administrator may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The Regulations may provide for any of the following: (a) fees payable, and the refund (wholly or partly) of fees paid, under this Act; (b) the exemption of an entity from the operation of this Act, or any stated provision of this Act, either unconditionally or subject to conditions; (c) penalties for offences against the Regulations not exceeding 10 penalty units for a natural person and 50 penalty units for a body corporate. (3) The Regulations may apply, adopt or incorporate (wholly or partly and with or without modification) a document as in force at a particular time or from time to time.

ENDNOTES Higher Education Act 2004 27 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Higher Education Act 2004 (Act No. 31, 2004) Assent date 6 June 2004 Commenced 27 September 2006 (Gaz G39, 27 September 2006, p 5) Penalties Amendment (Miscellaneous) Act 2013 (Act No. 23, 2013) Assent date 12 July 2013 Commenced 28 August 2013 (Gaz G35, 28 August 2013, p 2) Statute Law Amendment (Directors' Liability) Act 2015 (Act No. 26, 2015) Assent date 18 September 2015 Commenced 14 October 2015 (Gaz G41, 14 October 2015, p 3) Education Act 2015 (Act No. 28, 2015) Assent date 10 December 2015 Commenced pt 6, divs 2 and 4 and pt 7: 1 April 2016 (s 2(2)); pt 3: 1 July 2016 (s 2(3)); rem: 1 January 2016 (s 2) Statute Law Amendment (National Cabinet) Act 2023 (Act No. 9, 2023) Assent date 20 April 2023 Commenced 21 April 2023 (s 2) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1 and 4.

ENDNOTES Higher Education Act 2004 28 4 LIST OF AMENDMENTS s 4 amd No. 9, 2023, s 8 s 35 amd No. 23, 2013, s 11 ss 44 – 52 amd No. 23, 2013, s 11 s 55 rep No. 26, 2015, s 59 pt 12 hdg rep No. 28, 2015, s 195 ss 63 – 64 rep No. 28, 2015, s 195 s 65 exp No. 31, 2004, s 65

1 Higher Education Act 2004

The Act is organised around a set of defined institutional categories and administrative outcomes. Many of the substantive effects of the law flow from these definitions (s 4). Key conceptual building blocks that determine rights, duties, and prohibitions are:

University: defined broadly to include (a) institutions established or recognised as universities under an Act and listed in the AQF Register, (b) interstate universities, (c) prescribed overseas universities approved under s 14, and (d) any other institution prescribed by regulation as a university (s 4; definition of university). A separate statutory definition of interstate university clarifies that listing in the AQF Register and establishment under a Commonwealth, State or Territory Act are prerequisites (s 4).
Non-university provider: defined negatively as any person providing or proposing to provide a higher education course other than a university, the Batchelor Institute of Indigenous Tertiary Education, or an overseas higher education institution (s 4). This delineation determines who must seek accreditation under Part 5 and who is subject to offences concerning course offering and conferral (see ss 21, 47, 50).
Overseas higher education institution: defined as an institution established and operating in a foreign country whose awards are recognised as higher education awards by the foreign competent authority (s 4). Such institutions must obtain Territory approval before operating in the Territory (s 13 and prohibition in s 46).
Agency arrangement and agent: an agency arrangement is a contractual arrangement under which an educational institution established in the Territory provides a course on behalf of an interstate university (s 4). The Act requires detailed disclosure and a written undertaking from the interstate university when applying to operate under an agency arrangement (s 18).
Accredited course and accreditation: accreditation is the statutory authorisation granted by the Minister to a non-university provider to offer a particular higher education course (s 21-24). Accreditation can be granted for up to five years (s 24) and is subject to conditions (s 23).
National instruments as substantive criteria: the Act repeatedly makes the Minister’s satisfaction contingent on compliance with external national standards: the National Protocols for Higher Education Approval Processes (referred to throughout Parts 2-5), the National Code when dealing with overseas students (Parts 6 and 27-31), and the Australian Qualifications Framework and AQF Register in definitions and eligibility (s 4). The Act therefore treats those external instruments as the substantive benchmark for fitness to operate.
Information notice: the Act requires that refusals and imposition of conditions be accompanied by an information notice that states the decision, reasons, appeal entitlement and how to start an appeal (definition at s 4). The information notice triggers time limits for judicial review via appeal to the Supreme Court (Part 9).
Ministerial discretion versus procedures: across approvals the Minister has power to grant, refuse, impose conditions and cancel, but the Act layers procedural steps (advisory committee review for NT university establishment s 7-9, notice-and-submissions for condition amendments s 25) and minimum timeframes for show cause responses s 37(3) and appeal windows s 42.
Offence architecture: the Act criminalises operating as a university without authorisation and use of the university title (ss 44-45), operating an overseas higher education institution without approval (s 46), offering courses without accreditation (s 47), conferring awards without proper authorisation or without undertaking the course (ss 48-51), and making false or misleading statements in relation to applications (s 52). Penalties are stated in penalty units with higher maxima for bodies corporate (see ss 44-52).

These concept definitions control who must apply, who may be refused, what standards apply and which enforcement tools are available. The Act's reliance on external national instruments means that, mechanically, compliance is measured against those instruments even though the Minister retains decision-making authority and can impose additional "relevant and reasonable" conditions (ss 11(1), 15(1), 20(1), 23(1), 29(1)).

Primary regulated entities

Prospective Territory universities: the governing bodies that seek establishment or recognition as universities within the Territory under Part 2 (s 6). These applicants enter a process involving an advisory committee (ss 7-9), public notice and submissions (s 8(2)), and a ministerial decision which may carry conditions (s 10 and s 11). The Minister may review a university’s operations after its fifth anniversary (s 12).
Overseas higher education institutions: foreign institutions wishing to operate in the Territory must make an application under s 13 and obtain approval under s 14 before operating (s 46). Approvals are for up to five years (s 16) and are renewable with prescribed lead times (s 17).
Interstate universities and their agents: interstate universities that wish to operate in the Territory under agency arrangements must apply under s 18, providing agent and delivery-place details and a written undertaking (s 18(2)(a)-(b)). The Minister must grant the application if it strictly complies with s 18(2) (s 19(1)); non-compliance must lead to refusal and an information notice (s 19(2)).
Non-university providers: any provider (other than a university or certain specified entities) proposing to offer higher education courses must seek accreditation for those courses under Part 5 (ss 21-24). Accredited providers also have reporting obligations (s 26) and risk cancellation on grounds enumerated in s 36(3).
Providers of courses to overseas students: any higher education institution that wishes to provide courses to overseas students in the Territory must obtain approval under Part 6 (ss 27-31) and comply with the National Code (s 28(2)).

Secondary affected parties

Students, including overseas students: the Act places substantive controls on which institutions may offer and confer awards in the Territory (ss 44-51). These controls affect prospectuses, recruitment, and the legal enforceability of qualifications.
Agents and third-party delivery partners: agency arrangements, delivery places and the named agent are focal points for approval and registration (s 18(2)(a)-(b), s 57(4)). Agents appear on the public register (s 57(4)(c) and (d)), influencing their reputational and regulatory exposure.
Members of the public: the advisory committee must give public notice and consider public submissions for NT university establishment (s 8(2)). The register maintained by the Chief Executive Officer must be open for inspection on payment of a fee (s 57(7)).
The Northern Territory Government and administrators: the Minister and Chief Executive Officer administer approvals, visits, cancellations, the register, delegations, and guidelines (ss 32-33, 57-61).

Who pays and who decides

Applicants pay fees prescribed by the Regulations at the time of application for various approvals and accreditations (see repeat requirements: s 6(2)(b) for NT university applications, s 13(2)(b)(ii) for overseas institutions, s 21(2)(b)(ii) for course accreditation, and s 27(2)(b)(ii) for overseas student approvals). The Regulations may set the amounts and refund rules (s 62(2)(a)). The Minister is the primary decision maker for approvals, subject to the statutory processes and delegation rules (s 60).

Who risks penalties

Natural persons and body corporates alike may be penalised under the Act. Penalties are expressed in penalty units and are higher for bodies corporate across most offences (for example s 44 sets 500 penalty units for natural persons and 2 500 for bodies corporate). Obstruction of authorised persons carries a specific 10 penalty unit maximum under s 35(1). False or misleading statements in applications carry penalties (s 52). The Act attributes representative conduct and state of mind to corporations for liability purposes (s 54), increasing the risk for corporate entities.

Indirect effects

Market entrants and course designers: accreditation assessments that use the National Protocols and AQF criteria can affect course design, staffing, resource allocation and partnerships. The Act’s requirement for regulatory authorisation before offering courses to overseas students directly affects recruitment strategies and financial planning for institutions serving international markets (Part 6).
Legal and compliance advisers: the need to respond to show cause notices (minimum 30 days s 37(3)), to file appeals within 28 days (s 42), and to comply with documentation, annual reporting (s 26) and visits (s 32-34) creates demand for legal and compliance support.

In short, the Act places the primary compliance burden on institutions and their governing bodies, transfers decision-making power to the Minister with procedural constraints to the extent specified, and exposes both individuals and corporate bodies to penalties for unauthorised operation, misleading applications and obstruction.

Duties imposed on institutions and applicants

Apply and pay fees: applicants must make written applications and pay fees as prescribed (s 6(2); s 13(2)(b); s 21(2)(b); s 27(2)(b)). The Regulations set the fee amounts and refund rules (s 62(2)(a)).
Provide sufficient documentation: applications for overseas institutions, accreditation and overseas-student approvals must be accompanied by "sufficient documents and information" to enable decision (s 13(2)(b)(i), s 21(2)(b)(i), s 27(2)(b)(i)). The Minister may request further information with a reasonable time of at least 14 days in the NT university advisory committee context (s 8(3)) and may examine the operation of a provider when deciding applications (s 22(3), s 17(4), s 31(4)).
Annual reporting by non-university providers: a non-university provider offering an accredited course must give the Minister an annual written report by 31 May covering the prior calendar year, containing information that enables the Minister to assess whether continued accreditation is justified (s 26).
Comply with conditions and national standards: approvals and accreditations are subject to conditions the Minister may impose that are "relevant and reasonable" (ss 11(1), 15(1), 20(1), 23(1), 29(1)). For many approvals the Minister must be satisfied that the applicant complies with relevant National Protocols or the National Code (s 10(4), s 14(2), s 22(2), s 28(2)).
Facilitate authorised visits and inspections: authorised persons may be authorised by the Minister to visit premises to ensure compliance (s 32). Such persons may, during reasonable times when courses are normally provided, enter premises, observe operations, require information, inspect or copy documents and require reasonable assistance to exercise those powers (s 33). Persons must not, without reasonable excuse, obstruct authorised persons (s 35(1)).
Maintain correct representations and not confer awards improperly: providers must not hold out that they are authorised to confer awards unless the requisite approval or accreditation exists (ss 48-51). A person other than a university or the Batchelor Institute must not confer an award unless the recipient has undertaken the course (s 49).

Rights conferred on applicants and holders

Procedural notice and reasons: when a decision is made to refuse an application or impose conditions, the holder or applicant must be given an information notice containing the decision, reasons, appeal entitlement and instructions on how to start an appeal (see definition at s 4, applied in s 10(5), s 14(5), s 22(5), s 28(5), and elsewhere).
Show cause and response rights: for potential cancellations, the Minister must issue a show cause notice containing the proposed action, the ground, an outline of facts and circumstances and an invitation to show cause within a stated show cause period that must be at least 30 days (ss 37(1)-(3)). The holder may make written representations during the period and the Minister must consider them (s 38).
Appeal to the Supreme Court: a person given, or entitled to be given, an information notice may appeal to the Supreme Court by filing a notice of appeal with the Registrar within 28 days of receiving the information notice or becoming aware of the decision (ss 41-42). The appeal is defined as an appeal "in the strict sense" and the Court may confirm, vary, substitute or remit the matter with directions (s 43).
Non-effect of decisions pending appeal: cancellation decisions do not take effect until the end of the appeal period or until an appeal is finally determined (s 40(4)). Similarly, an amendment to accreditation conditions does not take effect until the time for starting an appeal has passed or any appeal has been resolved (s 25(4)).

Administrative duties of the Minister and Chief Executive Officer

Advisory committee appointment and consideration process: for NT university applications, the Minister must appoint an advisory committee of at least three persons with relevant expertise and refer the application to it; the committee must give public notice and consider public submissions (ss 7-8). The committee must report in writing and provide a copy to the applicant (s 9).
Register keeping and public access: the Chief Executive Officer must keep a register of approvals and accredited courses with specified details (s 57(1)-(6)), provide access for inspection for a fee, and supply copies on payment of the prescribed fee (s 57(7)).
Issuing guidelines and publishing: the Minister may issue guidelines for administration and must publish a Gazette notice when issuing guidelines and make them available for inspection free of charge at the stated place (s 61(1), (4)-(6)).
Delegation and certification: the Minister may delegate powers in writing to persons with appropriate qualifications or experience (s 60). Certificates purporting to be signed by the Chief Executive Officer are admissible as evidence of details such as the existence and terms of approvals (s 53).

Compliance obligations therefore combine documentary, disclosure and operational duties, while procedural safeguards are centred on information notices, show cause opportunities and a statutory right of appeal to the Supreme Court.

Overview of enforcement tools

The Act deploys both administrative and criminal enforcement mechanisms. Administratively, the Minister may impose conditions, amend conditions, suspend or cancel approvals and accreditations on specified grounds and after the procedural show cause process (Parts 8 and 25). Criminally, the Act creates offences for operating without approval, misuse of the title university, offering unaccredited courses, improper conferral of awards, obstruction of authorised persons, and making false or misleading statements in applications (Part 10, Division 1). The Chief Executive Officer’s certificates and signature are admissible as evidence in proceedings (s 53), and the Act contains provisions attributing representatives’ conduct to organisations for liability (s 54), facilitating prosecution of corporate actors.

Penalties: structure and examples

Operating as or holding out to be a university: maximum penalties are 500 penalty units for a natural person and 2 500 penalty units for a body corporate for operating or purporting to operate as a university (s 44(1)), and the same maxima for holding out an educational institution or place as being a university (s 44(2)). Use of the word "university" in a title to claim that a person is a university carries the same maximum penalties (s 45(1)). These provisions are subject to one explicit exception where an educational institution is prescribed by the Regulations (s 45(3)).
Operating an overseas higher education institution without approval: s 46 makes it an offence to operate an overseas higher education institution in the Territory without approval, with maximum penalties of 500 penalty units for a natural person and 2 500 penalty units for a body corporate.
Offering unaccredited courses and improper conferral: a non-university provider must not offer a higher education course unless accredited (s 47). Maximum penalties for that offence are 200 penalty units for a natural person and 1 000 penalty units for a body corporate. Related conferral offences (ss 48-51) carry similar penalties for conferring or holding out that the institution is authorised to confer awards without appropriate approvals or accreditations.
Obstruction of authorised person: obstructing an authorised person in the exercise of inspection powers attracts a maximum penalty of 10 penalty units (s 35(1)).
False or misleading statements: making a statement known to be false or misleading in material particulars in relation to an application under the Act is an offence with maximum penalties of 200 penalty units for natural persons and 1 000 penalty units for bodies corporate (s 52). The Act allows a complaint to allege generally that a statement was false or misleading without specifying which statement (s 52(2)).

Administrative cancellation and procedural safeguards

Grounds for cancellation are enumerated and vary by approval type: contravention of conditions, non-compliance with National Protocols or National Code, failure to provide the annual report for accredited courses, and the course no longer being appropriate to the type of award (s 36). Cancelling decisions must follow a show cause notice process with at least 30 days to respond (ss 37-38). If, after considering representations, the Minister still believes the ground exists and cancellation is warranted or if there are no representations, the Minister may cancel and must give an information notice; cancellations do not take effect until the appeal window has run or appeals are resolved (s 40).
Appeals: persons given an information notice may appeal to the Supreme Court within 28 days (ss 41-42). The appeal is an appeal in the strict sense and the Court may confirm, vary, substitute or remit with directions (s 43). If the Court substitutes or varies the original decision, the Court’s decision is taken to be the Minister’s decision for the Act’s purposes (s 43(3)).

Investigatory powers and evidentiary mechanisms

Authorised person visits: for compliance with National Protocols or the National Code the Minister may authorise persons to visit premises (s 32). Authorised persons have broad inspection and information-gathering powers (s 33) and must produce authorisation on request (s 34). Obstruction is an offence (s 35).
Evidentiary certificates: the Chief Executive Officer’s certificates that purport to state facts such as whether an approval or accreditation exists, its term and conditions, or whether a notice was given, are evidence of those matters in proceedings (s 53(3)). Signatures purporting to be that of the CEO are evidence (s 53(2)). These provisions facilitate administrative enforcement and prosecution without requiring live witnesses for certain documentary facts.

Liability attribution and protections

Corporate liability: the Act treats conduct by representatives within the scope of their actual or apparent authority as conduct of the principal for criminal proceedings and is sufficient to establish the state of mind required to found offences (s 54). However, the Act preserves the general rule that a natural person is not exposed to imprisonment merely by virtue of these attribution provisions if they would not have been guilty absent them (s 54(3)).
Protection from liability for officials: the Minister and authorised persons are not civilly or criminally liable for acts or omissions done in good faith in exercising powers under the Act, though this protection does not affect territorial liability (s 58).

Regulatory discretion and enforcement capacity

Regulations and guidelines can supplement sanctions: regulations may prescribe exemptions, fees and penalties for contraventions of the Regulations (s 62). The Minister may issue guidelines to guide administration and procedural matters (s 61). The Minister may delegate powers to suitably qualified persons (s 60), influencing enforcement capacity and operational detail.

In sum, the Act couples administrative cancellation powers with criminal penalties for unauthorised operation and misrepresentation. It supplies investigatory powers, lowers transactional evidentiary burdens for administration through CEO certificates, and provides appeal avenues. Entities face both administrative risk of cancellation with statutory procedural protections and criminal exposure for specific contraventions.

The Act explicitly imports and relies on several national instruments and inter-jurisdictional registers as the substantive criteria against which fitness to operate is judged. The Act does not operate in isolation; its definitions and substantive decision criteria create direct dependencies on Commonwealth and national processes.

Direct references and dependence

Education Services for Overseas Students Act 2000 (Commonwealth Act) and the National Code: the Act adopts the National Code established under Part 4 of the Commonwealth Act as the substantive benchmark for approving provision of courses to overseas students in the Territory (s 4 definition of National Code; s 28(2)). For approvals to provide courses to overseas students, the Minister may grant only if satisfied the institution complies with the National Code (s 28(2)). Authorised visits may be for ensuring compliance with the National Code as well as the National Protocols (s 32(1)).
National Protocols for Higher Education Approval Processes: these are invoked across the Act as the decision-making criteria for university establishment, overseas institution approvals, interstate agency operations and accreditation of courses (see s 8(1) for advisory committee consideration, s 10(4) for Ministerial satisfaction on university establishment, s 14(2) for overseas institutions, s 22(2) for accreditation of non-university courses, and other sections). The Minister’s satisfactions are explicitly measured against those Protocols, making Territory administrative decisions dependent on those national protocols.
Australian Qualifications Framework and AQF Register: the Act uses the AQF Register as the reference list for qualifying interstate universities and in the definition of "university" (s 4). Being listed in the AQF Register is a precondition for interstate university status under the Act.

Complementarity and potential overlap

Commonwealth regulation of overseas students: the Commonwealth Act governs registration of providers for the purposes of international student arrangements and creates national compliance regimes. The Territory Act requires compliance with the National Code for Territory approvals to provide courses to overseas students (s 28), which creates a parallel Territory-level authorisation that operates alongside Commonwealth obligations. Institutions therefore must satisfy both Commonwealth and Territory requirements where applicable. The Act does not displace Commonwealth requirements and, in practice, institutions will need to coordinate compliance.
State/Territory Acts and interstate universities: the Act recognizes interstate universities that are established or recognised under Acts of the Commonwealth, a State or another Territory and listed on the AQF Register (s 4). This creates an interface where an interstate university’s status under other jurisdictions is accepted as relevant for Territory operations, but the Territory still regulates agency arrangements conducted within its borders (ss 18-20). The interstate university must give a written undertaking to ensure compliance with national protocols when applying to operate under an agency arrangement (s 18(2)(b)(iii)).

Regulatory hierarchies and deference

Ministerial reliance on national instruments: the Act makes the Minister’s threshold satisfactions contingent on compliance with national instruments, but it also vests the Minister with a final decision-making role and the discretion to impose conditions that are "relevant and reasonable" (e.g. s 10(3) notes the Minister is not bound by the advisory committee recommendation). This combination means that while national instruments serve as the accepted substantive standard, Territory officials retain administrative discretion in applying them to Territory-specific approvals and conditions.
Regulations and prescription powers: the Act allows the Administrator to make Regulations not inconsistent with the Act, to prescribe fees, exemptions and penalties and to apply or incorporate external documents as in force from time to time (s 62). This enables the Territory to align or diverge administratively from Commonwealth or national practice but only within the statutory limits.

Evidentiary and procedural alignment

Evidentiary certificates and administrative proofs: s 53 permits the Chief Executive Officer to certify certain facts for evidentiary use in proceedings. These administrative evidentiary mechanisms interact with general litigation practice and administrative law by simplifying proof of the existence, term and conditions of approvals.

Matters left to other regimes

The Act does not attempt to replicate nuanced national quality assurance processes; it requires compliance with National Protocols and the AQF when relevant but does not itself set academic quality criteria beyond that reliance. It also does not regulate tertiary funding arrangements, intellectual property, consumer protection beyond misrepresentation offences, or employment matters for staff, all of which remain governed by other Territory, State or Commonwealth laws.

In short, the Act is designed to sit alongside Commonwealth and national frameworks, using them as the substantive benchmark for fitness to operate while preserving Territory administrative control over approvals, conditions, monitoring and enforcement. Practically, regulated entities must navigate both Territory and national requirements, and approvals under this Act may be necessary but not sufficient where Commonwealth registration or other approvals are also required.

The reprint records a sequence of amendments and formal changes to the Act since assent. The Act was originally assented to on 6 June 2004 and commenced on 27 September 2006 (Endnotes, List of legislation). Subsequent Acts and amendments affecting this reprint include the following, as stated in the Endnotes and List of Amendments.

Recorded amending Acts and dates

Penalties Amendment (Miscellaneous) Act 2013 (Act No. 23, 2013): assented 12 July 2013 and commenced 28 August 2013. The endnotes identify amendments to s 35 and to ss 44-52 made by this Act (Endnotes 4).
Statute Law Amendment (Directors' Liability) Act 2015 (Act No. 26, 2015): assented 18 September 2015 and commenced 14 October 2015. The Endnotes indicate s 55 was repealed and other formal amendments took place (Endnotes 4).
Education Act 2015 (Act No. 28, 2015): assented 10 December 2015 with varied commencement dates for different parts; the Endnotes note that the Act repealed pt 12 heading and other sections (Endnotes 4).
Statute Law Amendment (National Cabinet) Act 2023 (Act No. 9, 2023): assented 20 April 2023 and commenced 21 April 2023. The Endnotes record an amendment to s 4 by this Act (Endnotes 4 and Key to abbreviations). The reprint notes a general amendment to s 4 by No. 9, 2023, s 8 (Endnotes 4).

Other formal amendments

The Interpretation Legislation Amendment Act 2018 made formal amendments of a non-substantive nature to ss 1 and 4 of the Act (Endnotes 3).

Reprint notes and section-level amendments

The 'List of amendments' in the Endnotes itemises specific sections altered: s 4 amended by No. 9, 2023, s 8; s 35 amended by No. 23, 2013, s 11; ss 44-52 amended by No. 23, 2013, s 11; s 55 repealed by No. 26, 2015, s 59; pt 12 heading repealed by No. 28, 2015, s 195; ss 63-64 repealed by No. 28, 2015, s 195; and s 65 expired in the original Act (Endnotes 4). The reprint indicates other formal re-numbering or technical amendments effected over time.

Consequences for practitioners

Penalty changes in 2013: the Penalties Amendment (Miscellaneous) Act 2013 amended the offence provisions (s 35 and ss 44-52). While the reprint sets out penalty units, practitioners should cross-reference the 2013 amending legislation for the exact policy changes (for example the amounts of penalty units) where those details matter.
Repeals and transfers in 2015: the Statute Law Amendment (Directors' Liability) Act 2015 and the Education Act 2015 effected repeals and other structural changes to the Act. The reprint notes that certain provisions were removed and the Act’s structure was changed (see Endnotes 4).
Latest 2023 amendment to definitions: s 4 was amended by the 2023 National Cabinet-related Act (Endnotes 4). Given s 4 contains core definitions used throughout the Act, such amendments can materially alter who is captured by the regime.

The Endnotes explicitly list these amendments and provide commencement dates. The reprint itself should be read in conjunction with the amending Acts for full legislative history, as the Endnotes summarise amendments but the amending statutes contain the exact textual changes. Practitioners should confirm whether the Regulations made under s 62 have changed since the last reprint, because the Act delegates many operational matters to regulations and guidelines.

The reprint and the Endnotes do not contain case law citations or an internal record of court decisions under the Act. The statutory text provides the procedural route for judicial review and appeals: an appeal in the strict sense lies to the Supreme Court against decisions for which an information notice is given (ss 41-43). The appeal must be commenced by filing notice with the Registrar within 28 days of receipt of the information notice or of becoming aware of the decision (s 42). The Supreme Court has standard appellate powers to confirm, vary, substitute or remit the decision and can make orders and directions as it considers appropriate (s 43). If the Court substitutes or varies the original decision it becomes the Minister’s decision for the Act’s purposes (s 43(3)).

What the Act makes available to litigants

Strict appeal limited to information-notice decisions: s 41 confines appeal rights to persons given, or entitled to be given, an information notice. The definition of "information notice" requires the notice to set out reasons and appeal rights (s 4). Procedural compliance with the information notice requirement therefore triggers judicial review via appeal.
Evidence and procedure framed by statute: s 53 provides that signatures and certificates purporting to be those of the Chief Executive Officer are evidence in proceedings, which affects how administrative facts can be proved in litigation. Section 54 attributes representatives’ conduct and state of mind to corporations, which may bear on mens rea questions in prosecutions.
No recorded decisions in the reprint: the reprint does not provide any sample judicial interpretations of the Act’s provisions, the scope of ministerial discretion, or the limits of administrative procedure. In the absence of cases in this source, practitioners will need to search NT Supreme Court decisions and administrative law determinations for precedents interpreting the Act, the meaning of "relevant and reasonable" conditions, and judicial review of ministerial satisfaction concerning the National Protocols and National Code.

Risk areas for litigation

Challenge to ministerial discretion: because the Act vests the Minister with the final decision while incorporating national standards as the substantive benchmark (for example s 10(4), s 14(2), s 22(2), s 28(2)), litigation could arise over whether the Minister properly applied those benchmarks or acted unreasonably, particularly where the Minister declines to follow advisory committee recommendations (s 10(3)).
Procedural sufficiency and notice: failures to provide adequate information notices or to follow the prescribed show cause processes (ss 37-40) could lead to appeals or judicial review on procedural fairness grounds.
Interpretation of definitions: disputes may arise about whether an entity is a "university" (s 4), an "overseas higher education institution" (s 4), or falls within an exemption prescribed by regulations (s 45(3), s 62(2)(b)).

Absent a litigation record in this reprint, the statutory appeal route and evidentiary provisions provide clear procedural mechanisms for contesting administrative decisions under the Act, but practitioners should examine current NT case law databases for decisions under this Act to understand how courts have interpreted key provisions.

Timing and procedural traps

Renewal lead times: renewals must be lodged well before expiry. For overseas institution approvals the application for renewal must be made at least nine months before the approval ends (s 17(2)). For approvals to provide courses to overseas students the renewal application must be made at least six months before expiry (s 31(2)). Failure to file within these windows may expose holders to a lapse of approval and the prohibition on operation without approval (s 46).
Appeals and effect of decisions: cancellations and amendments to conditions do not take effect until the appeal window has closed or appeals have been finally determined (s 40(4), s 25(4)). However, the holder must be aware that administrative steps such as suspension, remedial conditions or other regulatory actions may run concurrently; the Act does not prevent the Minister taking other lawful steps short of cancellation.
Minimum procedural periods: the Act specifies minimum times for procedural responses that are relatively short in regulatory contexts: show cause periods must be at least 30 days (s 37(3)); notice periods for proposed condition amendments must be at least 21 days (s 25(2)(a)(ii)). Practitioners should ensure timely, substantive responses within those fixed windows.

Definition and scope issues

"Operate" includes electronic delivery: the definition of "operate" expressly includes operating by electronic communication (s 4). Remote or online providers that deliver courses into the Territory therefore fall within the Act’s reach even if no physical campus exists in the Territory.
University title exceptions: section 45 makes it an offence to use the word university in a title unless the entity is a university, but the provision does not apply to institutions prescribed by the Regulations (s 45(3)). Regulation-driven exceptions can create uncertainty; before adopting titles entities should check both the Act and the Regulations.
Batchelor Institute exception: the definition of non-university provider excludes the Batchelor Institute of Indigenous Tertiary Education (s 4). Practitioners must note statutory carve-outs in definitions to avoid misclassification.

Regulatory discretion and evidential presumptions

Minister not bound by advisory committee: for NT university establishment the Minister must have regard to the advisory committee’s report but is not bound by its recommendations (s 10(2)-(3)). Applicants should therefore prepare to make direct representations to the Minister beyond the advisory committee process.
CEO certificates as evidence: s 53 allows certificates of the Chief Executive Officer to be used as evidence of administrative facts. In contested prosecutions or administrative disputes, this statutory evidentiary shortcut can make administrative proofs straightforward unless successfully challenged.

Enforcement risk and corporate attribution

Representative attribution: s 54 attributes the conduct and state of mind of representatives to corporate entities. Organisations must therefore manage governance and oversight tightly because employees’ or agents’ conduct within apparent authority can found corporate liability.
False or misleading statements broadly framed: s 52 criminalises making statements in relation to an application that a person knows to be false or misleading in a material particular and allows complaints to allege generally that a statement was false or misleading without specifying which. This makes precise record-keeping and internal review of applications critical.

Regulatory and registry practicalities

Public register and fees: the register is open for inspection at the Agency head office for payment of a fee and copies may be obtained for a fee (s 57(7)). A public record will carry reputational implications and fees for access mean stakeholders must plan for disclosure risk and potential administrative costs.
Regulations can confer exemptions: the Administrator may make Regulations exempting entities from parts of the Act either unconditionally or subject to conditions (s 62(2)(b)). Entities considering novel models should check for existing regulations or consider lobbying for an exemption route, but exemption is discretionary.

Miscellaneous operational gotchas

Delegation qualifications: the Minister may only delegate powers to a person the Minister is satisfied has the appropriate qualifications or experience (s 60(2)). Delegation arrangements should be documented carefully to ensure authorised decision-makers are properly empowered and their qualifications recorded.
Publication of guidelines: the Minister must publish notice in the Gazette when issuing guidelines and state where they can be inspected; copies must be available free of charge at the stated place (s 61(4)-(6)). Practitioners should monitor the Gazette and the Agency’s stated publication site for operational guidance that can materially affect application expectations.

In brief, the principal 'gotchas' are timing and renewal windows, the effect of definitions (especially inclusion of electronic delivery), ministerial discretion and evidentiary certificates, and the ease with which corporate entities can incur liability through representatives. Attention to documentation, governance, and early engagement with the Minister and Agency is necessary to avoid procedural pitfalls.

This section sets out a practical compliance checklist mapped to the Act’s processes and timeframes. It is designed as a close reading of statutory requirements to guide an applicant or holder through the principal compliance steps and pre-empt common regulatory triggers.

Determine your category and legal status (start here)

Identify whether you are a university, interstate university, overseas higher education institution, non-university provider, or an educational institution seeking to provide courses to overseas students. Use the definitions in s 4. If seeking to act as an interstate university under agency arrangements, ensure you are listed in the AQF Register and established/recognised under an Act (definition of interstate university, s 4).

Pre-application documentation and alignment with national instruments

Align course design, governance, resources and quality assurance with the National Protocols and, where overseas students are involved, the National Code. The Minister’s statutory satisfactions about suitability and appropriateness are measured against those instruments (see s 8(1), s 10(4), s 14(2), s 22(2), s 28(2)).
For non-university course accreditation ensure the course and mode of delivery are appropriate to the award type in the AQF (s 22(2)).

Prepare the application and pay fees

Submit a written application to the Minister with the documents and information sufficient for decision as required: NT university establishment (s 6(1)-(2)), overseas higher education institution approval (s 13(1)-(2)), interstate university operating under agency arrangement (s 18(1)-(2)), accreditation of courses by non-university providers (s 21(1)-(2)), and approval to provide courses to overseas students (s 27(1)-(2)).
Include any required undertakings,for example, interstate universities must provide a written undertaking to ensure compliance with National Protocols for the course provided under the agency arrangement (s 18(2)(b)(iii)).
Ensure you pay the prescribed fee; Regulations set fee amounts (s 62(2)(a)).

Be prepared for public notice and advisory committee processes (NT university applications)

For establishment as a Territory university the advisory committee must give public notice and consider public submissions (s 8(2)). Be ready to respond to public scrutiny and submit additional material if the committee requests further information within reasonable time, normally at least 14 days (s 8(3)).

Engage with the Minister’s decision process and conditions

The Minister may impose conditions that are "relevant and reasonable" when granting approvals or accreditations (see s 11(1), s 15(1), s 20(1), s 23(1), s 29(1)). Build compliance systems that can accommodate conditions and track them centrally.
If the Minister proposes to amend conditions, expect a written notice with particulars and at least a 21-day period to make written submissions (s 25(2)). Amendments do not take effect until appeal rights have lapsed or been resolved (s 25(4)).

Maintain ongoing compliance and reporting

Non-university providers with accredited courses must deliver an annual report by 31 May for the previous calendar year addressing whether continued accreditation is justified (s 26). Keep detailed records to support that report.
Keep governance and operational compliance with National Protocols and the National Code where relevant; failure to comply is a ground for cancellation (s 36).

Prepare for visits and inspections

The Minister may authorise persons to visit premises to ensure compliance; authorised persons may require documents, information and reasonable assistance (ss 32-33). Designate staff to receive authorised persons, ensure authorisations are produced on request (s 34), and avoid obstructing authorised persons (s 35), since obstruction is a discrete offence.

Responding to show cause notices and handling cancellation risk

If served with a show cause notice the holder has at least 30 days to make written representations (ss 37-38). Treat the show cause notice as the trigger for immediate legal and operational review. The Minister must consider accepted representations (s 38(2)). If the Minister still believes cancellation is warranted, an information notice must be given and the cancellation will not take effect during the appeal period (s 40(3)-(4)).

Manage documentation and recordkeeping to avoid offences

Avoid false or misleading statements in relation to applications; s 52 criminalises knowingly false or misleading statements. Retain contemporaneous records of application materials, approvals, and correspondence. Use internal sign-off procedures for application materials to ensure accuracy.

Prepare for appeals and litigation

If you receive an information notice you may appeal to the Supreme Court within 28 days from receipt or from the date you become aware of the decision (s 42). Ensure you know the appeal timelines and the documentation required by the Registrar.

Confirm the details recorded on the register maintained by the Chief Executive Officer (s 57). Keep contact and delivery-place details up to date, because the register will be publicly available for inspection and copies can be obtained for a fee (s 57(7)).

Governance and insurance considerations

Because representative conduct may be attributed to the entity for criminal purposes (s 54), maintain clear governance, delegation and supervision of officers and agents. Consider appropriate indemnity and professional liability cover. Be aware that s 58 protects authorised persons and the Minister acting in good faith but does not extend to the Territory’s own civil liability for the act or omission, and provides no equivalent blanket protection for regulated entities.

Check Regulations and Guidelines

Consult Regulations and Ministerial guidelines for procedural details, fee levels, prescribed exemptions and other operational matters (ss 61-62). Guidelines are required to be published in the Gazette and made available for inspection (s 61(4)-(6)). Regulations may also incorporate external documents by reference (s 62(3)).

Special practical items

If delivering courses electronically to Territory students treat that as "operating in the Territory" under the Act (definition of operate, s 4). If intending to use the word "university" in titles or marketing, check both the Act and the Regulations because misuse is an offence (ss 44-45), with exceptions only by regulation (s 45(3)). Plan renewals early and set internal calendars keyed to statutory renewal windows (s 17(2); s 31(2)).

Following this checklist will not remove all regulatory risk but will align an applicant or holder with the Act’s primary procedural and substantive requirements. For contested matters engage legal counsel promptly when show cause notices or information notices are issued, and maintain a rigorous evidence trail for all representations made to the Minister and Agency.

Higher Education Act 2004

Plain English Summary

Deep Dive

What it does

Current sections

Higher Education Act 2004

Source text: opening excerpt

1 Higher Education Act 2004

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply