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