Higher Education Act 2004 (WA)

Western Australia Higher Education Act 2004 Western Australia Higher Education Act 2004 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Providing a course of study — interpretation 4 5. Making representations — interpretation 4 Part 2 — Establishing and maintaining standards for higher education Division 1 — Protection of standards for higher education 6. Protection of titles and awards 5 7A. Representations about authorisation to accredit higher education courses 6 7B. Representations about admissions into higher education courses 6 Division 2 — Universities Subdivision 1 — Report about criteria for establishing Australian university 7. Report about criteria for establishing Australian university 7 Subdivision 2 — Recognition of overseas universities 8. Recognised overseas universities 8 9. Applications for s. 10 determination 8 10. Recognition of overseas universities 9 11A. Further conditions on s. 10 determination 10 11. Suspension or revocation of s. 10 determination 10 Division 3 — Non‑university institutions Subdivision 1 — Authorised non‑university institutions 12. Authorised non‑university institutions 11 Subdivision 2 — Self‑accrediting authorisation of non‑university institutions 13A. Applications for grant of self‑accrediting authorisation 12 13B. Self‑accrediting authorisation of non‑university institutions 12 13C. Further conditions on self‑accrediting authorisation 14 13D. Suspension or revocation of self‑accrediting authorisation 14 Subdivision 3 — Provider's authorisation of non‑university institutions 13. Applications for provider's authorisations 15 14. Authorisation of non‑university institutions 16 15A. Duration of provider's authorisation 17 15B. Further conditions on provider's authorisation 17 15. Suspension or revocation of provider's authorisation 18 Subdivision 4 — Accredited higher education courses 16. Accredited higher education courses 19 Subdivision 5 — Ministerial accreditation of higher education courses 17A. Application of this Subdivision 19 17. Applications for ministerial accreditation 19 18. Ministerial accreditations 20 19A. Duration of accreditation 21 19B. Further conditions on accreditation 22 19. Suspension or revocation of ministerial accreditation 22 Division 4 — Higher education advisory committees 20. Higher education advisory committees 23 21A. Report of higher education advisory committee to be provided to applicant 24 21. Remuneration of advisory committee members 25 Part 3A — Reviews and investigation 22. Review of operations 26 23A. Inspectors, appointment of 26 23B. Inspectors' powers 27 23C. Consequences of investigations 28 Part 3 — Other matters 23. Register of Higher Education 29 24A. Minister to make National Protocols available for inspection 29 24. Delegation by Minister 30 25. Act binds Crown 30 26A. Protection from liability 30 26. Disclosure of information 31 27A. Evidentiary matters 31 27. Vicarious liability for corporations 32 28. Agreement to pay costs of considering application or request 32 29. Recovery of fees 33 30. Regulations 33 Notes Compilation table 35 Western Australia Higher Education Act 2004 An Act to provide for recognition of Australian and overseas universities, authorisation of other higher education institutions and accreditation of higher education courses, and for related purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Higher Education Act 2004 1. 2. Commencement This Act comes into operation on the day on which it receives the Royal Assent 1. 3. Terms used In this Act, unless the contrary intention appears — accredited, in relation to a course of study, means accredited for the purposes of this Act as provided by section 16; Australian Qualifications Framework means the framework of educational qualification stated in the implementation handbook for that framework published by the Australian Qualifications Framework Advisory Board as in force from time to time; Australian university means an education institution, or part of an education institution, that — (a) was originally established in Australia; and (b) is established or recognised as a university by or under a written law of this State, the Commonwealth, another State, the Australian Capital Territory or the Northern Territory; Australian university college means an education institution, or part of an education institution, that — (a) was originally established in Australia; and (b) is established or recognised as a university college by or under a written law of this State, the Commonwealth, another State, the Australian Capital Territory or the Northern Territory; authorised non‑university institution means a non‑university institution that is authorised under section 12 to provide a higher education course; company has the same meaning as in the Corporations Act 2001 of the Commonwealth; course provider, in relation to a higher education course, means the education institution that provides, offers to provide or proposes to provide the course; education institution means a company or other body that provides, offers to provide or proposes to provide a course of study; education Minister means the Minister of State of the Commonwealth, for a State, the Australian Capital Territory or the Northern Territory who is principally responsible for the administration of the law relating to higher education in the respective jurisdiction; higher education advisory committee means a person or persons appointed under section 20; higher education award means a qualification referred to in the Australian Qualifications Framework as a qualification that is issued in the higher education sector; higher education course means a course of study that entitles a person who satisfies the course requirements to the conferral of a higher education award; ministerial accreditation, in relation to a higher education course, means accreditation under section 18; National Protocols means — (a) the National Protocols for Higher Education Approval Processes approved by the Ministerial Council on Education, Employment, Training and Youth Affairs on 31 March 2000, as amended from time to time; or (b) if the regulations declare a document to be in substitution for that protocol — a reference to the substitute document, as amended from time to time; non‑university institution means an education institution that is not — (a) an Australian university; or (ba) an Australian university college; or (b) a recognised overseas university; overseas university means an education institution that — (a) was originally established in another country; and (b) is established, recognised or accredited as a university by the appropriate authorities of that country; payment agreement means an agreement referred to in section 28; provider's authorisation means an authorisation granted for a non‑university institution under section 14; recognised overseas university has the meaning given in section 8; represent has the meaning given in section 5; section 10 determination, in relation to an education institution, means a determination made under section 10; self‑accrediting authorisation means an authorisation granted for a non‑university institution under section 13B. [Section 3 amended: No. 40 of 2009 s. 4.] 4. Providing a course of study — interpretation For the purposes of this Act, a person provides a course of study if the institution or an agent of the institution enrols or offers to enrol students to undertake the course, whether the course is provided face‑to‑face or at a distance by post, fax, email or any other means. 5. Making representations — interpretation For the purposes of this Act, a person represents that a state of affairs exists if the person does or says anything, or allows anything to be done or said, by which it is represented, or by which a belief may be induced, that the state of affairs exists. Part 2 — Establishing and maintaining standards for higher education Division 1 — Protection of standards for higher education [Heading inserted: No. 40 of 2009 s. 5.] 6. Protection of titles and awards (1) An education institution or an agent of an education institution must not, by use of the title "university" or in any other way, represent that the education institution is a university or part of a university unless it is — (a) an Australian university; or (b) a recognised overseas university. Penalty: a fine of $20 000. (2) Subsection (1) does not apply to — (a) the organisation known as "U3A" (the "University of the Third Age"); or (b) a prescribed person or organisation; or (c) an Australian university college or an agent of such an institution that represents that the institution is a university college or part of a university college — (i) by use of a title that includes the words "university college"; or (ii) in any other way. (3) A person must not confer or offer to confer or purport to confer a higher education award on anyone unless the person is — (a) an Australian university; or (ba) an Australian university college; or (b) a recognised overseas university; or (c) an authorised non‑university institution; or (d) an agent of an institution referred to in paragraph (a), (ba), (b) or (c). Penalty: a fine of $20 000. (4) A person must not represent that a course of study leads to, will partially satisfy the requirements for, or would entitle a person who satisfies the course requirements to, the conferral of a higher education award, unless — (a) the course provider is — (i) an Australian university; or (ii) an Australian university college; or (iii) a recognised overseas university; or (b) the course provider is an authorised non‑university institution and the course is accredited. Penalty: a fine of $20 000. [Section 6 amended: No. 40 of 2009 s. 6.] 7A. Representations about authorisation to accredit higher education courses An education institution or an agent of an education institution must not represent that the institution is authorised to accredit a higher education course unless a self‑accrediting authorisation is in force for the institution authorising it to accredit such a course. Penalty: a fine of $20 000. [Section 7A inserted: No. 40 of 2009 s. 7.] 7B. Representations about admissions into higher education courses A person must not represent that successful completion of a course of study would satisfy, or partially satisfy, the academic prerequisites for admission into a higher education course unless the higher education course provider has authorised that representation. Penalty: a fine of $20 000. [Section 7B inserted: No. 40 of 2009 s. 7.] Division 2 — Universities [Heading inserted: No. 40 of 2009 s. 8.] Subdivision 1 — Report about criteria for establishing Australian university [Heading inserted: No. 40 of 2009 s. 8.] 7. Report about criteria for establishing Australian university (1) An education institution may request the Minister to appoint a higher education advisory committee to consider and report to the Minister on — (a) whether the committee considers that the institution meets the criteria set out in the National Protocols for establishing an Australian university; and (b) any other matter relevant to a decision on whether the institution should be established as an Australian university. (2) A request must — (a) be accompanied by a payment agreement; and (b) include the prescribed information. (3) The Minister may in writing, require the institution making the request to provide further information in relation to the request. (4) The requirement is to specify a reasonable time within which the institution must comply with the requirement. (5) The Minster may refuse to appoint a higher education advisory committee, or may discharge a committee that has been appointed, if the institution does not comply with a requirement under subsection (3) within the time specified in the requirement. (6) The Minister must, as soon as practicable after receiving the report of a higher education advisory committee regarding an education institution, give a copy of the report to the institution. [Section 7 inserted: No. 40 of 2009 s. 9.] Subdivision 2 — Recognition of overseas universities [Heading inserted: No. 40 of 2009 s. 10.] 8. Recognised overseas universities An education institution is a recognised overseas university for the purposes of this Act if — (a) it is an overseas university or part of an overseas university; and (b) a section 10 determination is in force in respect of the institution. [Section 8 amended: No. 40 of 2009 s. 11.] 9. Applications for s. 10 determination (1) An education institution that is an overseas university, or part of an overseas university, may apply to the Minister for a. 10 determination. (2) An application must — (a) be accompanied by a payment agreement; and (b) include the prescribed information. (3) The Minister may in writing, require the applicant to provide further information in relation to the application. (4) The requirement is to specify a reasonable time within which the applicant must comply with the requirement. (5) The Minster may refuse the application if the applicant does not comply with a requirement under subsection (3) within the time specified in the requirement. [Section 9 amended: No. 40 of 2009 s. 12.] 10. Recognition of overseas universities (1) The Minister may determine that an education institution meets the criteria for recognition as an overseas university if satisfied that the institution meets the criteria set out in the National Protocols for overseas universities seeking to operate in Australia. (2) Before making a determination, the Minister must have regard to the report of the higher education committee appointed to consider the matter. (3) When making a determination, the Minister may also have regard to the following — (a) any national policies and agreements about the governance and other characteristics of overseas universities made by the Minister with other education Ministers; (b) any other relevant information. (4) The Minister may make a determination subject to any conditions relevant to — (a) ensuring that the education institution meets or continues to meet the criteria referred to in section 10(1); or (b) protecting the interests of the students enrolled in the higher education courses provided by the institution. (5) If the Minister makes a determination under this section, the Minister must arrange for a copy of the determination to be laid before each House of Parliament. [Section 10 inserted: No. 40 of 2009 s. 13.] 11A. Further conditions on s. 10 determination (1) The Minister may, at any time after making a section 10 determination, make the determination subject to any conditions relevant to — (a) ensuring that the education institution meets or continues to meet the criteria referred to in section 10(1); or (b) protecting the interests of the students enrolled in the higher education courses provided by the institution. (2) Before making a section 10 determination subject to conditions under subsection (1), the Minister must — (a) give the institution an opportunity to make representations on the matter; and (b) consider any representations made; and (c) have regard to the interests of the students enrolled in the higher education courses provided by the institution. [Section 11A inserted: No. 40 of 2009 s. 14.] 11. Suspension or revocation of s. 10 determination (1) The Minister may suspend or revoke a section 10 determination if — (a) the education institution does not comply with a condition to which the determination has been made subject under section 10(4) or 11A(1); or (b) the Minister is no longer satisfied that the education institution meets the criteria referred to in section 10(1). (2) Before suspending or revoking a determination, the Minister must — (a) give the education institution an opportunity to make representations on the matter; (b) consider any representations made; and (c) have regard to the interests of students enrolled in the higher education courses provided by the institution. (3) A suspension or revocation under subsection (1) is to be given to the education institution in writing signed by the Minister and is to state the grounds relied on in making the decision. (4) If the Minister revokes a section 10 determination, the Minister must arrange for a copy of the revocation to be laid before each House of Parliament. [Section 11 amended: No. 40 of 2009 s. 15.] Division 3 — Non‑university institutions [Heading inserted: No. 40 of 2009 s. 16.] Subdivision 1 — Authorised non‑university institutions [Heading inserted: No. 40 of 2009 s. 16.] 12. Authorised non‑university institutions A non‑university institution is authorised to provide a higher education course — (a) if — (i) a self‑accrediting authorisation is in force for the institution; and (ii) the course is accredited by the institution in accordance with that authorisation; or (b) if — (i) a provider's authorisation is in force for the institution; and (ii) ministerial accreditation is in force for the course. [Section 12 inserted: No. 40 of 2009 s. 17.] Subdivision 2 — Self‑accrediting authorisation of non‑university institutions [Heading inserted: No. 40 of 2009 s. 18.] 13A. Applications for grant of self‑accrediting authorisation (1) A non‑university institution may apply to the Minister for the grant of a self‑accrediting authorisation. (2) An application request must — (a) be accompanied by a payment agreement; and (b) include the prescribed information. (3) The Minister may in writing, require the applicant to provide further information in relation to the application. (4) The requirement is to specify a reasonable time within which the applicant must comply with the requirement. (5) The Minster may refuse the application if the applicant does not comply with a requirement under subsection (3) within the time specified in the requirement. [Section 13A inserted: No. 40 of 2009 s. 18.] 13B. Self‑accrediting authorisation of non‑university institutions (1) The Minister may grant a self‑accrediting authorisation for a non‑university institution if satisfied that — (a) the governance, financial resources, facilities, staffing and student services of the institution are or will be appropriate to the provision of higher education courses; and (b) the institution has structures and processes to set standards for higher education courses that are at least equal or equivalent to the Australian standards appropriate to courses of that type; and (c) the institution meets any other criteria set out in the National Protocols in relation to the standards and qualities required for approval of an institution to self‑accredit its courses. (2) When deciding whether to grant a self‑accrediting authorisation, the Minister must have regard to the report of the higher education advisory committee appointed to consider the matter. (3) When deciding whether to grant a self‑accrediting authorisation, the Minister may also have regard to the following — (a) the governance, financial resources, facilities, staffing and student services of comparable institutions; (b) any other relevant information. (4) A self‑accrediting authorisation may authorise the institution to do one or more of the following — (a) accredit higher education courses leading to a higher education award within a field or a range of fields specified in the authorisation; (b) accredit higher education courses leading to a higher education award of a type or types specified in the authorisation. (5) The Minister may grant a self‑accrediting authorisation subject to any conditions relevant to — (a) ensuring that the non‑university institution meets or continues to meet the criteria referred to in section 13B(1); or (b) protecting the interests of the students enrolled in the higher education courses provided by the institution. [Section 13B inserted: No. 40 of 2009 s. 18.] 13C. Further conditions on self‑accrediting authorisation (1) The Minister may, at any time after a self‑accrediting authorisation has been granted, make the authorisation subject to any conditions relevant to — (a) ensuring that the non‑university institution meets or continues to meet the criteria referred to in section 13B(1); or (b) protecting the interests of the students enrolled in the higher education courses provided by the institution. (2) Before making a self‑accrediting authorisation subject to conditions under subsection (1), the Minister must — (a) give the non‑university institution an opportunity to make representations on the matter; and (b) consider any representations made; and (c) have regard to the interests of the students enrolled in the higher education courses provided by the institution. [Section 13C inserted: No. 40 of 2009 s. 18.] 13D. Suspension or revocation of self‑accrediting authorisation (1) The Minister may suspend or revoke a self‑accrediting authorisation if — (a) the non‑university institution does not comply with a condition to which the authorisation has been made subject under section 13B(5) or 13C(1); or (b) the Minister is no longer satisfied that the non‑university institution meets the criteria referred to in section 13B(1). (2) The suspension or revocation of a self‑accrediting authorisation may be in respect of one or more of the higher education courses that the non‑university institution is authorised to accredit. (3) Before suspending or revoking a self‑accrediting authorisation, the Minister must — (a) give the non‑university institution an opportunity to make representations on the matter; and (b) consider any representations made; and (c) have regard to the interests of the students enrolled in the higher education courses provided by the institution. (4) A suspension or revocation under subsection (1) is to be given to the non‑university institution in writing signed by the Minister and is to — (a) state the grounds relied on in making the decision; and (b) where relevant, specify the higher education courses to which it applies. (5) A suspension or revocation has effect to the extent specified in the written notice. [Section 13D inserted: No. 40 of 2009 s. 18.] Subdivision 3 — Provider's authorisation of non‑university institutions [Heading inserted: No. 40 of 2009 s. 19.] 13. Applications for provider's authorisations (1) A non‑university institution may apply to the Minister for the grant or renewal of a provider's authorisation. (2) An application must — (a) be accompanied by the fee prescribed by, or calculated under, the regulations; and (b) include the prescribed information. (3) The Minister may in writing, require the applicant to provide further information in relation to the application. (4) The requirement is to specify a reasonable time within which the applicant must comply with the requirement. (5) The Minster may refuse the application if the applicant does not comply with a requirement under subsection (3) within the time specified in the requirement. [Section 13 amended: No. 40 of 2009 s. 20.] 14. Authorisation of non‑university institutions (1) The Minister may grant or renew a provider's authorisation for a non‑university institution if satisfied that — (a) the governance, financial resources, facilities, staffing and student services of the institution are or will be appropriate to the provision of higher education courses; and (b) the institution otherwise meets the criteria set out in the National Protocols in relation to non‑university institutions. (2) When deciding whether to grant or renew a provider's authorisation, the Minister must have regard to the report of the higher education advisory committee appointed to consider the matter. (3) When deciding whether to grant or renew a provider's authorisation, the Minister may also have regard to the following — (a) the governance, financial resources, facilities, staffing and student services of comparable institutions; (b) any other relevant information. (4) The Minister may grant or renew a provider's authorisation subject to any conditions relevant to — (a) ensuring that the non‑university institution meets or continues to meet the criteria referred to in section 14(1); or (b) protecting the interests of the students enrolled in the higher education courses provided by the institution. [Section 14 amended: No. 40 of 2009 s. 21.] 15A. Duration of provider's authorisation (1) Unless otherwise provided under this Act, a provider's authorisation continues in force — (a) for 5 years from the day on which the authorisation is granted; or (b) if an earlier day is specified in the authorisation, until that day. (2) The Minister may extend a provider's authorisation, in writing given to the non‑university institution, for a period of up to 6 months after the day on which it would otherwise have ceased to be in force if — (a) an application for the renewal of the authorisation was made — (i) 6 months or more before that day; or (ii) less than 6 months before that day, if that day is less than 6 months after the commencement of the Higher Education Amendment Act 2009 section 22 1; and (b) the Minister has not made a final decision on that application before that day. [Section 15A inserted: No. 40 of 2009 s. 22.] 15B. Further conditions on provider's authorisation (1) The Minister may, at any time after a provider's authorisation has been granted, make the authorisation subject to any conditions relevant to — (a) ensuring that the non‑university institution meets or continues to meet the criteria referred to in section 14(1); or (b) protecting the interests of the students enrolled in the higher education courses provided by the institution. (2) Before making a provider's authorisation subject to conditions under subsection (1), the Minister must — (a) give the non‑university institution an opportunity to make representations on the matter; and (b) consider any representations made; and (c) have regard to the interests of the students enrolled in the higher education courses provided by the institution. [Section 15B inserted: No. 40 of 2009 s. 22.] 15. Suspension or revocation of provider's authorisation (1) The Minister may suspend or revoke a provider's authorisation if — (a) the non‑university institution does not comply with a condition to which the authorisation has been made subject under section 14(4) or 15B(1); or (b) the Minister is no longer satisfied that the non‑university institution meets the criteria referred to in section 14(1). (2) Before suspending or revoking a provider's authorisation, the Minister must — (a) give the non‑university institution an opportunity to make representations on the matter; (b) consider any representations made; and (c) have regard to the interests of students enrolled in the higher education courses provided by the institution. (3) A suspension or revocation under subsection (1) is to be given to the non‑university institution in writing signed by the Minister and is to state the grounds relied on in making the decision. [Section 15 amended: No. 40 of 2009 s. 23.] Subdivision 4 — Accredited higher education courses [Heading inserted: No. 40 of 2009 s. 24.] 16. Accredited higher education courses A higher education course provided by a non‑university institution is accredited for the purposes of this Act if — (a) a self‑accrediting authorisation is in force for the institution and the course is accredited by the institution in accordance with that authorisation; or (b) ministerial accreditation is in force for the course; or (c) the course is accredited by or under a written law of the Commonwealth, another State, the Australian Capital Territory or the Northern Territory. [Section 16 inserted: No. 40 of 2009 s. 25.] Subdivision 5 — Ministerial accreditation of higher education courses [Heading inserted: No. 40 of 2009 s. 26.] 17A. Application of this Subdivision This Subdivision applies to a course provider that is a non‑university institution. [Section 17A inserted: No. 40 of 2009 s. 27.] 17. Applications for ministerial accreditation (1) A course provider may apply to the Minister for accreditation or renewal of accreditation of a higher education course. (2) An application must — (a) be accompanied by the fee prescribed by, or calculated under, the regulations; and (b) include the prescribed information. (3) The Minister may in writing, require the applicant to provide further information in relation to the application. (4) The requirement is to specify a reasonable time within which the applicant must comply with the requirement. (5) The Minster may refuse the application if the applicant does not comply with a requirement under subsection (3) within the time specified in the requirement. [Section 17 amended: No. 40 of 2009 s. 28.] 18. Ministerial accreditations (1) The Minister may accredit, or renew the accreditation of, a higher education course leading to a particular higher education award if satisfied that — (a) the standard of the course and the way in which it is being or will be provided are appropriate to the award; and (b) the course meets any other applicable criteria set out in the National Protocols in relation to the standards to be met by courses leading to an award of that kind. (2) When deciding whether to accredit, or renew the accreditation of, a higher education course, the Minister must have regard to the report of the higher education advisory committee appointed to consider the matter. (3) When deciding whether to accredit, or renew the accreditation of, a higher education course, the Minister may also have regard to the following — (a) the standard and provision of comparable courses provided by Australian universities or recognised overseas universities; (b) any other relevant information. [(4)‑(6) deleted] (7) The Minister may make the accreditation of a higher education course subject to any conditions relevant to — (a) ensuring the course meets or continues to meet the criteria referred to in section 18(1); or (b) protecting the interests of the students enrolled in the course. [Section 18 amended: No. 40 of 2009 s. 29.] 19A. Duration of accreditation (1) Unless otherwise provided under this Act, ministerial accreditation of a higher education course continues in force until — (a) the day that is 5 years after the day on which the course is registered under section 23(3); or (b) if an earlier day is specified in the accreditation, that day. (2) The Minister may extend accreditation of a higher education course, in writing given to the course provider, for a period of up to 6 months after the day on which it would otherwise have ceased to be in force if — (a) an application for the renewal of the accreditation was made — (i) 6 months or more before that day; or (ii) less than 6 months before that day, if that day is less than 6 months after the commencement of the Higher Education Amendment Act 2009 section 30; and (b) the Minister has not made a final decision on that application before that day. [Section 19A inserted: No. 40 of 2009 s. 30.] 19B. Further conditions on accreditation (1) The Minister may, at any time after accrediting a higher education course, make the accreditation subject to any conditions relevant to — (a) ensuring the course meets or continues to meet the criteria referred to in section 18(1); or (b) protecting the interests of the students enrolled in the course. (2) Before making accreditation of a higher education course subject to conditions under subsection (1), the Minister must — (a) give the course provider an opportunity to make representations on the matter; and (b) consider any representations made; and (c) have regard to the interests of the students enrolled in the course. [Section 19B inserted: No. 40 of 2009 s. 30.] 19. Suspension or revocation of ministerial accreditation [(1) deleted] (2) The Minister may suspend or revoke the accreditation of a higher education course if — (a) the course provider does not comply with a condition to which the accreditation is subject under section 18(7) or 19B(1); or (b) the Minister is no longer satisfied that the course meets the criteria referred to in section 18(1). (3) Before suspending or revoking accreditation of a higher education course, the Minister must — (a) give the course provider an opportunity to make representations on the matter; (b) consider any representations made; (c) have regard to the interests of students enrolled in the course. (4) A suspension or revocation under subsection (2) is to be given to the course provider in writing signed by the Minister and is to state the grounds relied on in making the deci