Higher Education Regulations 2005

The regulations define several key terms. “Recognised course provider” means either a recognised overseas university providing an accredited course or an authorised non‑university institution providing an accredited course. This aligns with the Act’s distinction between university and non‑university providers. The term “award” means a higher education award - the degrees and qualifications listed in the fee tables: diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree, and doctoral degree. The distinction between “Australian student” (citizen or permanent resident) and “overseas student” (holder of a student visa under the Migration Act) is defined but not heavily used in these regulations; it appears mainly to clarify the scope of certain provisions in the Act. The concept of “related” and “unrelated” courses is critical to fee calculation. Under regulation 2(2), a course is unrelated if it is in a different field of study from every other course in the same application. A course is related if it belongs to a group of two or more courses in the same field. The field of study is not further defined in the regulations, leaving that to the Minister or the higher education advisory committee to determine, which creates some uncertainty for applicants. The “higher education advisory committee” is the body appointed to consider applications; its involvement triggers the shift from the preliminary $1,500 fee to the much larger full assessment fee. The regulations also introduce “registered business name” (under Commonwealth Business Names Registration Act 2011) and “ACN” (Australian company number under Corporations Act) as identifiers, though they do not mandate corporate form. The fee structure itself is a core concept: it is two‑tiered - an upfront preliminary fee (refundable if a full assessment occurs) and a full assessment fee calculated per unrelated course or per group of related courses. The full assessment fee replaces the preliminary fee, so the applicant effectively pays only the full assessment fee if the committee decides to proceed to that stage. For course accreditation, the preliminary fee is also $1,500, but if the applicant applies for both provider authorisation and course accreditation at the same time, the accreditation preliminary fee is waived, though the full assessment fee for the accreditation still applies in addition to the provider full assessment fee. That bundling discounts the application process, rewarding simultaneous applications. Regulation 5B outlines the content of an “arrangement” under section 28(1) of the Act between the Minister and the applicant. That arrangement must cover costs and expenses of the advisory committee, including remuneration of members, selection, services, and report preparation, as well as the preparation of a financial and resources report by an approved person. The arrangement must also specify timing and manner of payment. Disputes about costs under that arrangement go to commercial arbitration under the Commercial Arbitration Act 2012, not to court. This is a notable feature: it privatises cost disputes, preventing them from clogging the administrative review system, but also imposes an arbitration cost burden on the applicant.

The regulations primarily affect applicants for provider authorisation and course accreditation in Western Australia. These applicants are typically educational entities seeking to operate as non‑university higher education providers or as recognised overseas universities wishing to deliver courses in WA. For‑profit and not‑for‑profit institutions are both covered. The fee schedule scales with award level and course count, so a small provider offering a single diploma faces an initial $1,500 plus a full assessment fee of $3,860 for an unrelated diploma course - a total of $5,360 if full assessment occurs. A large provider seeking authorisation for a dozen unrelated courses across multiple fields faces a much higher burden, as each unrelated course is charged separately. That creates a disproportionate impact on institutions offering diverse fields without clustering related offerings. The regulations also affect higher education advisory committees, who are appointed to assess applications; their remuneration and expenses become a charge on the applicant under the section 28 arrangement, shifting the cost of regulation from the state to the regulated entity. The Minister is directly affected, as the regulations empower the Minister to enter into cost arrangements, waive fees, and receive notifications of ownership changes. The Minister must also administer the arbitration clause if disputes arise. Students are indirectly affected: the cost of regulation may be passed through to tuition fees, and the quality assurance regime may affect course availability. However, the regulations do not directly address student rights or obligations. The notification duty in regulation 9 imposes a compliance burden on recognised course providers: any change in ownership must be notified at least 30 days before the change, and any material change to information previously provided must be notified within 30 days after. This affects any provider that restructures, sells its business, changes its constitution, or updates its key personnel or financial information. The penalty is a fine of $5,000 for each failure, which is a relatively modest amount for a corporate entity, but still a credible threat for small providers. The waiver power in regulation 10 gives the Minister discretion to reduce or eliminate fees in a particular case, which creates a potential avenue for relief for financially constrained applicants or those facing unusual circumstances, but that power is entirely discretionary and not subject to criteria, so it creates uncertainty and may be exercised arbitrarily. The arbitration clause for cost disputes under section 28 arrangements affects any applicant who disputes the Minister’s demands for costs. Arbitration under the Commercial Arbitration Act 2012 can be expensive, and the applicant bears the cost of the arbitration itself unless otherwise ordered. That may deter applicants from challenging cost claims, especially smaller providers for whom litigation or arbitration costs could outweigh the disputed amount.

The principal duties are financial and informational. Applicants must pay the prescribed fees at the times specified: a preliminary fee with the application, then the full assessment fee within 30 days of notification that a full assessment will occur. The duty to pay is strict: no provision for extension of time or late payment, though the Minister may waive all or part of the fee under regulation 10. The duty to provide information is equally strict: applications must include all information prescribed in Schedule 1 (for provider authorisation and related determinations) and Schedule 2 (for course accreditation). Schedule 2 Division 2 adds additional information for courses that are or have been registered under section 23(3) of the Act - that is, courses already on a register that are being re‑accredited or transferred. The regulations impose an ongoing duty on recognised course providers under regulation 9: they must give written notice of any proposed change in ownership at least 30 days beforehand, and any material change in other particulars within 30 days after the change. “Material change” is not defined, leaving providers to guess what the Minister will consider material. The penalty for non‑compliance is $5,000, but note that the fine is expressed as a penalty in the regulation itself, not as a civil penalty provision in the Act; the enforcement mechanism is likely through the Magistrates Court, not through administrative action. Providers also have a right to a refund or rebate of the preliminary fee if a full assessment is undertaken: regulation 5(2)(b) and 7(3)(b) state that the applicant is entitled to a refund or rebate of the amount of the application fee paid. The wording suggests either a refund or a rebate; presumably the rebate is against the full assessment fee, but the regulations do not detail the mechanism. That creates some practical ambiguity. Applicants have a right to have disputes about costs under a section 28 arrangement determined by arbitration under the Commercial Arbitration Act 2012. This is a procedural right, not a substantive one, and it applies only to cost disputes, not to the merits of the application itself. The Minister has the right to require an applicant to enter into an arrangement covering costs before the process proceeds. The Minister also has the right to waive fees, but no corresponding duty to do so. There is no right of appeal against a decision not to waive, and no criteria are stated, so the decision is likely judicially reviewable only on the narrow ground of Wednesbury unreasonableness. Overseas students and Australian students are not given any direct rights under these regulations; their protection comes from the Act itself and other legislation.

The only monetary penalty explicitly set by these regulations is a fine of $5,000 for failure to give notice under regulation 9. That penalty is set out in the regulation itself, which is unusual: most subordinate instruments rely on the Act’s penalty provisions. The Act’s penalty provisions are not reproduced here, so the reader must refer to the Act for other enforcement tools. Regulation 9(2) states the penalty for failure to give at least 30 days notice of a proposed ownership change: a fine of $5,000. Regulation 9(3) states the same penalty for failure to give notice of a material change within 30 days after the change. The penalty is not expressed as a daily penalty, but as a fixed fine per failure. There is no escalation for continued non‑compliance. The enforcement body is not specified, but the ordinary process would be a prosecution in the Magistrates Court. Other non‑compliance with the regulations , such as not paying a fee on time , does not carry an express penalty in these regulations. The Act may provide separate penalties for operating without authorisation or accreditation, but those are not in the regulations. The regulations do provide for the Minister to take enforcement action indirectly: if an applicant does not pay a full assessment fee within 30 days, the regulations do not say that the application lapses or that the Minister can refuse to proceed, but the practical effect is that the process will halt. The arbitration clause for cost disputes (regulation 5B(2)) means that if a provider refuses to pay costs under a section 28 arrangement and disputes the amount, the Minister cannot simply enforce the debt without arbitration; however, failure to pay pending arbitration may still constitute a breach of the arrangement. The penalty power is thus quite narrow: it is limited to the notification duty. The absence of other penalty provisions suggests that the primary enforcement mechanism for fee non‑payment is the Minister’s ability to refuse to process applications or to revoke authorisation or accreditation under the Act. The regulations themselves do not address revocation or suspension; that is left to the Act. The $5,000 fine is modest for corporate applicants but may be significant for individuals. The fine is not indexed and has not been amended since the regulations were made; in real terms it has decreased. There is no provision for infringement notices or on‑the‑spot fines. Overall, the enforcement architecture is light, relying more on the applicant’s incentive to obtain and maintain authorisation than on penal deterrence.

The regulations reference several Commonwealth and State laws. The Corporations Act 2001 (Cth) is referred to for the definition of ACN and registered office. The Business Names Registration Act 2011 (Cth) is used for “registered business name”. The Migration Act 1958 (Cth) defines “Australian permanent resident” and “student visa” for overseas student status. The Commercial Arbitration Act 2012 (WA) governs disputes about cost arrangements under regulation 5B(2). The regulations also mention “corresponding law”, meaning a law of the Commonwealth, another State, or a Territory that corresponds to the WA Act. This is important for mutual recognition and for consistency of regulation across jurisdictions. If an applicant already holds authorisation or accreditation under a corresponding law, the WA process might be simplified, though the regulations do not detail the interaction; that is likely in the Act. The regulations interact with the Higher Education Act 2004 (WA) at every point; they are made under that Act and give it operational detail. For example, the Act’s section 7(2)(b) requires prescribed information from a person giving notice of intention to provide a higher education course; the regulation supplies that information via Schedule 1. Similarly, sections 9, 13A, 13, and 17 require prescribed information and fees; the regulations supply them. The regulations also create a direct link to the Minister’s power under section 28(1) to enter into an arrangement for costs; regulation 5B mandates the content of that arrangement. The Act’s section 21A(3)(c) requires the fee for a review to be prescribed; regulation 9A provides the calculation method. There is no direct interaction with the ESOS Act (Education Services for Overseas Students) or the National Code, but the definitions of overseas student and Australian student flag that the regulations are aware of that regime. The regulations do not address the interaction with the Australian Qualifications Framework (AQF), though the award titles (diploma, bachelor, etc.) match AQF levels. The competition law interaction is not mentioned; however, the fee structure could favour larger providers who can bundle more courses and achieve economies of scale. There is no grandfathering or transitional provision for providers already operating before the regulations commenced; the compilation table shows the regulations have been amended several times but the original commencement was 26 July 2005. The amendments in 2009, 2010, 2011, 2012, and 2013 adjusted fees, added new provisions (like the review fee and the agreement content), and updated references (e.g., to the Commercial Arbitration Act). The regulations do not appear to conflict with Commonwealth competition principles, but the mandatory cost arrangement under section 28 may raise issues if the fees charged are not cost‑reflective; there is no requirement for the Minister to justify the costs.

The regulations were originally gazetted on 26 July 2005 and commenced that day. They have been amended five times. The Higher Education Amendment Regulations 2009 (gazetted 14 August 2009, operative 15 August 2009 except for the citation and commencement provisions) updated fee amounts. The Higher Education Amendment Regulations 2010 (gazetted 8 June 2010, operative 9 June 2010) inserted new regulations 3, 5A, 5B, and 9A, and amended regulation 9. Those amendments added the prescribed information for section 7 applications (regulation 3), prescribed information for section 13A applications (regulation 5A), the content of agreements under section 28 (regulation 5B), the fee calculation for reviews under section 21A (regulation 9A), and updated notification obligations for recognised course providers. The 2010 amendments significantly expanded the regulatory framework from a simple fee schedule to a more elaborate cost recovery and information regime. The Higher Education Amendment Regulations 2011 (gazetted 25 November 2011, operative 26 November 2011) again updated fee amounts, increasing the dollar figures in the tables. The Higher Education Amendment Regulations 2012 (gazetted 27 November 2012, operative that day) amended regulation 2 to include references to the Business Names Registration Act 2011 and updated the definition of registered business name. The Higher Education Amendment Regulations 2013 (gazetted 19 July 2013, operative 7 August 2013) amended regulation 5B to replace a reference to the Commercial Arbitration Act 1985 with the Commercial Arbitration Act 2012. The fees have been updated three times: 2009, 2011, and presumably the 2005 original figures. The 2011 amendment raised fees across the board. For example, the full assessment fee for a bachelor degree under provider authorisation went from an earlier amount to $8,190; the 2009 amendment had set it at $7,810 (not shown in source but implied by the table). The pattern is that fees increase roughly every two to three years. The compilation table shows reprint 1 as at 19 October 2012, which included all amendments up to 2012. The regulations are compiled and republished periodically. There is no amendment history for the schedules themselves, which have likely been amended in parallel with the regulations. The note at the end of the compilation table indicates that defined terms were not part of the law but were included for convenience. This amendment history reveals a regulatory regime that has become more detailed and expensive over time, with the state shifting more costs onto applicants through mandatory cost arrangements and higher fees.

The source text does not mention any case law, court decisions, or administrative review tribunal outcomes. The regulations themselves contain an arbitration clause for cost disputes, which suggests that litigation in court is not the intended forum for those disputes. There are not reported cases interpreting the Higher Education Regulations 2005 (WA) that are cited in the text. The regulations are subordinate legislation and relatively narrow; most disputes likely concern the Act itself rather than the regulations, or are resolved informally. The arbitration clause may produce awards that are confidential, so they would not be in public caselaw. The Minister’s discretion to waive fees under regulation 10 could theoretically be challenged by judicial review, but no such cases are referenced. The notification duty under regulation 9 could be enforced by prosecution, but no prosecutions appear on the public record or are cited here. In the absence of any litigation history in the source, a prudent analyst would note that the regulations have not been tested in court, which may indicate that they are either clear enough to avoid disputes or that disputes have been settled without publication. The arbitration clause is a notable feature that reduces the likelihood of public litigation. Providers who dispute costs must go to arbitration, not court, so any interpretive questions about the scope of the regulation would be decided by arbitrators without creating precedent. This means the meaning of terms like “material change” or “unrelated course” may never receive judicial clarification, increasing uncertainty for applicants who cannot rely on binding interpretations.

Several traps await unsuspecting applicants. The fee structure is not a simple flat fee; the preliminary $1,500 is refunded only if a full assessment occurs, and the full assessment fee is payable within 30 days of notification of the decision to conduct a full assessment. That deadline is short and failure to pay may lead to stalemate. The full assessment fee is calculated on the basis of unrelated and related courses. If an applicant submits an application covering multiple courses, they must correctly classify each course as related or unrelated based on field of study. A mistake in classification could result in either an underpayment (risking rejection) or overpayment (wasting money). The definition of “field of study” is not given, so an applicant must guess whether, for example, a Bachelor of Commerce and a Bachelor of Business are in the same field. If the committee disagrees with the classification, the applicant may face a gap fee demand or have their application delayed. The schedule of prescribed information in Schedule 1 and Schedule 2 is lengthy but not reproduced in the regulation text; the regulations merely refer to it. Applicants must locate the schedules (presumably published in the Gazette or available from the WA legislation website). Failure to include all required information may result in the application being rejected as incomplete, without a refund of the preliminary fee (because no full assessment was triggered). The regulation does not say the Minister must request missing information; it only says the application must include that information. The bundling discount for simultaneous provider authorisation and course accreditation applications is valuable, but only if the applicant applies at the same time. A separate application loses the waiver of the accreditation preliminary fee. The arbitrator clause for cost disputes is a double‑edged sword: it may be cheaper than litigation, but the applicant pays for the cost of the arbitrator and the proceedings. If the dispute is over a small amount, arbitration may not be worth pursuing. The notification duty under regulation 9 has a separate penalty for each failure, but the definition of “material change” is ambiguous. A change of a director’s address may be considered material under original application information, but is it “material”? The risk is that the Minister could argue any change to the particulars initially supplied is material, and failure to notify within 30 days incurs a $5,000 fine. There is no grace period for inadvertent omissions. The requirement to notify a proposed change in ownership at least 30 days before the change is a rigid timeline. If a provider sells its business on short notice, it cannot comply, and the penalty applies. There is no provision for the Minister to dispense with or shorten the notice period. The waiver power in regulation 10 is entirely discretionary; there are no criteria, no right to request a waiver, and no review of a refusal. Relying on a waiver is risky. The fee for a review under regulation 9A is calculated by multiplying an agreed hourly rate by an agreed estimate of hours. The estimate is agreed by the applicant and the Minister; if the applicant does not agree, the review may not proceed. This gives the Minister leverage to set a high estimate. Finally, the regulations do not provide for indexing of fees, so the real cost of fees declines over time unless amended. That creates a periodic lobbying cycle for the department to seek amendments. New entrants face the same nominal fees as incumbents, but incumbents have already sunk those costs, so the barrier to entry remains.

Compliance begins with the application stage. An applicant for provider authorisation under section 13 of the Act must pay $1,500 with the application and include all information listed in Schedule 1. After submission, the higher education advisory committee makes a preliminary assessment. If it decides to proceed to a full assessment, the applicant must pay the full assessment fee within 30 days of notification. That fee depends on the number of unrelated courses and groups of related courses. To minimise fees, the applicant should group courses into the same field of study wherever possible, because related courses are charged a lower marginal fee. For example, if applying for a Bachelor of Arts and a Bachelor of Arts (Honours) in the same field, they would be related and charged as a group, with the higher award (Honours) attracting the fee for the highest award. If applying for a Bachelor of Arts and a Bachelor of Science, those would be unrelated and each charged independently at the full rate. The applicant must also enter into an arrangement with the Minister under section 28(1) to cover costs of the advisory committee. That arrangement must cover remuneration, expenses, and services of the committee, and must specify payment timing and method. The applicant should negotiate the arrangement carefully and ensure that costs are reasonable. If a dispute arises about costs, the applicant should invoke the arbitration clause under regulation 5B(2) rather than refusing to pay unilaterally, as that would likely breach the arrangement. For course accreditation separately, the applicant pays $1,500 as a preliminary fee, but if also applying for provider authorisation at the same time, the accreditation preliminary fee is waived. The full assessment fee for course accreditation is higher than for provider authorisation and follows a similar related/unrelated structure. The applicant must provide the information in Schedule 2 Division 1, and if the course is or has been registered under section 23(3) of the Act, also Division 2. After authorisation or accreditation is granted, the recognised course provider must monitor for any proposed change in ownership. If a change is contemplated, written notice must be given to the Minister at least 30 days before the change takes effect. The provider should also keep a log of all particulars supplied in the original application and any subsequent changes; if any of those particulars change materially, the provider must notify the Minister in writing within 30 days after the change. The definition of “material change” is uncertain, so the prudent provider will notify any change that might reasonably be considered important, including changes to key personnel, financial standing, corporate structure, registered address, or business name. The penalty for non-compliance is $5,000 per failure, so the cost of over‑notification is low relative to the risk of a fine. The provider should also maintain a register of changes and the dates of notification to prove compliance if challenged. If the provider faces financial hardship and wishes to seek a fee reduction, it may request a waiver from the Minister under regulation 10. The request should be in writing and set out the circumstances why a waiver would be fair. There is no guarantee, but the Minister has absolute discretion. If a full assessment has not yet occurred and the provider decides not to proceed, it may be able to avoid the full assessment fee, but the preliminary fee is generally non‑refundable unless a full assessment occurs. Finally, compliance with the regulations is not the end of the story; the provider must also comply with the Act itself, which may impose additional ongoing conditions, reporting duties, and quality assurance requirements. The regulations are one component of a larger regulatory framework.