Deakin University Act 2009

The Act introduces several key concepts. The University is a body politic and corporate with perpetual succession (s 4(2), s 6(1)). The Council is the governing body established under section 8. Its membership comprises official members (Chancellor, Vice‑Chancellor, president of the academic board), a fixed number of government appointed members (appointed by the Governor in Council on the Minister’s recommendation and by the Minister directly), a fixed number of Council appointed members (appointed by the Council), and elected members (elected by staff and students) (s 11). The number of members is fixed by Order in Council under section 63, but pending that order, section 11A provides a default composition of at least 13 but no more than 21 persons, with at least four government appointed and four Council appointed members. Government appointed members must equal or outnumber Council appointed members (s 11(5)). At least two members among government appointed and Council appointed must have financial expertise, and one must have commercial expertise at a senior level (s 11(5A)). Official members are defined in section 11(2) as the Chancellor, Vice‑Chancellor and the president of the academic board. Elected members are staff‑elected and student‑elected members (s 11(4A)). Government appointed members are appointed under section 12; Council appointed members under section 13. The Chancellor is appointed by the Council for a term not exceeding five years (s 24). The Vice‑Chancellor is appointed as chief executive officer (s 26). The Visitor is the Governor of Victoria, but has only ceremonial functions and no power to resolve disputes (s 22). University statutes and university regulations are subordinate legislative instruments made by the Council under Part 5; they are not statutory rules under the Subordinate Legislation Act 1994 and are not subordinate instruments under the Interpretation of Legislation Act 1984 (s 33). University commercial activity is defined broadly in section 3, encompassing any commercial activity engaged in by or on behalf of the University, and includes activities declared by the Minister by order published in the Government Gazette (s 52). Guidelines are approved by the Minister under section 55 and govern commercial activities, auditing, finance and property matters. They must not be inconsistent with university statutes or regulations (s 57). The Act also defines staff, student, graduate, and limited company for specific purposes. Trust funds and investment common funds are covered in Division 3 of Part 6, with a cap of 5 per cent commission on trust fund income (s 42). The concept of casual vacancies is detailed in Schedule 1 clauses 7 and 8, with special rules for elected members, government appointed and Council appointed members. The Act also introduces a 12‑year cumulative cap on Council membership (whether consecutive or not), subject to a Council resolution allowing extension (Sch 1 cl 2).

The Act directly affects the University itself as a body corporate, its Council members, the Chancellor, Deputy Chancellor, Vice‑Chancellor and other officers, the academic board, staff, students, graduates, and emeritus professors. The Minister for Education, the Treasurer, the Governor in Council, and the Auditor‑General each have specific roles. The Minister appoints some government appointed members (s 12(2)), approves guidelines (s 55), and must be consulted on land acquisition (s 36). The Treasurer’s approval is required for borrowing limits and conditions (s 45(2)). The Governor in Council appoints other government appointed members, makes Orders in Council fixing Council membership numbers (s 63), and may remove government appointed members (s 12(5)). The Auditor‑General audits companies controlled by the University (ss 49‑51) and may be asked to investigate commercial activities (s 60). The Act also affects entities that enter into joint ventures or companies with the University (s 48), and persons entering University land or using its facilities may be subject to fines under university statutes or regulations (s 61). Members of Parliament of Victoria, the Commonwealth, or any other State or Territory are disqualified from Council membership (s 14(1)). Persons disqualified from managing corporations under the Corporations Act, or convicted of an indictable offence, are ineligible (s 14(2)). The Act imposes duties on Council members: they must act in good faith, with reasonable care and diligence, avoid conflicts of interest, and not misuse their position (s 15). The University must indemnify Council members, committee members, and academic board members against actions arising from acts done in good faith (s 19). Staff members are continued in employment under the same terms and conditions from the previous Act (s 69). Students are defined both as those enrolled in courses leading to degrees or awards, and as persons designated by the Council (s 3). The Act also affects members of the public who use University facilities or enter University property, as they may be subject to university statutes and regulations (s 28). Additionally, the Act binds the Crown? It does not expressly say, but as a public university Act, it likely binds the Crown by implication, though not stated. The Act also affects trustees and beneficiaries of trust funds administered by the University (ss 39‑42). Finally, the Act has transitional effects on persons who were members of the Council, staff, or held office under the repealed Acts (ss 64‑80).

The Act imposes distinct duties and confers rights on various actors. The Council’s primary responsibilities are set out in section 8(3): appointing and monitoring the Vice‑Chancellor, approving mission, strategic direction, annual budget and business plan, overseeing management, establishing policy and procedural principles, approving systems of control and accountability (including over controlled entities), overseeing risk assessment and management (including commercial activities), monitoring academic activities, and approving significant university commercial activities. The Council also has the power to confer degrees and grant other awards (s 10), to make university statutes and regulations (s 28), and to delegate its powers (subject to prohibitions in s 18(2) on delegating the power to delegate, the power to appoint officers under s 9(1)(a), and the power to make statutes). Council members must act reasonably to ensure the Council performs its functions (s 15(1)); they must act in good faith, honestly and for proper purposes, exercise reasonable skill and diligence, and avoid conflicts of interest unless declared (s 15(2)). They must not make improper use of their position or information (s 15(3)). The University must indemnify members against claims arising from good‑faith acts (s 19). The Vice‑Chancellor is the chief executive officer generally responsible for the conduct of the University’s affairs (s 26(6)), and may delegate functions to staff or committees (s 26(7)). The Chancellor chairs Council meetings (Sch 1 cl 10). Deputy Chancellers act in the Chancellor’s absence (s 25). The academic board must be established by the Council, which determines its powers, functions and membership (s 20). The University has broad property powers: it may acquire, hold and dispose of property (s 6(1)(c), s 35). However, disposal of land is subject to restrictions: land granted under section 36(6)(a) cannot be alienated without the Minister’s prior approval (s 37(1)); other land in fee simple cannot be alienated without Minister approval if consideration exceeds $5 million (or a greater Gazette‑fixed amount) (s 37(3)); leases over 21 years require approval (s 37(4)). Investment lands are exempt from subsections 37(3) and (4) (s 38). The University may borrow money with Treasurer approval (s 45). It may invest money as authorised by the Council (s 46). It may establish trust funds and investment common funds (ss 39‑40) and deduct up to 5% commission from trust fund income (s 42). The Council may delegate its trustee powers (s 43). The University must arrange an annual audit of its income and expenditure in accordance with guidelines (s 47). It must also ensure that controlled companies are audited by the Auditor‑General (ss 49‑51). The University may submit guidelines to the Minister for approval, and the Minister may also make interim guidelines (s 53, s 55). The Council must ensure compliance with guidelines, though non‑compliance does not invalidate commercial agreements (s 58). The Minister may request reports on commercial activities (s 59) and refer matters to the Auditor‑General (s 60). The Act also provides for the filling of casual vacancies on the Council (Sch 1 cl 8) and for the conduct of elections (Sch 1 cl 6). Finally, any fine imposed under university statutes or regulations is a civil debt recoverable summarily (s 61), and a certificate signed by the Vice‑Chancellor is prima facie evidence (s 62).

The Act itself does not create criminal offences or penalties. Instead, enforcement mechanisms arise through the university statutes and regulations made under Part 5. Section 61 provides that a fine imposed under those statutes or regulations on a member of staff, a student, or any person entering or on University land or using University facilities is a civil debt recoverable summarily by the University in any court of competent jurisdiction. Section 62 provides that a certificate signed by the Vice‑Chancellor or a delegate stating the amount of such a fine, the date, and the reasons for imposition is prima facie evidence of those facts in all courts and before all persons acting judicially. This means the University can recover fines through ordinary civil debt recovery procedures rather than criminal prosecution. The Act includes provisions for removal of Council members. Under Schedule 1 clause 3, the Council may remove a member (other than an official member? It is not so limited) if the member has failed to comply with the responsibilities set out in section 15. The removal process requires notice of motion, written grounds, an opportunity for the member to make submissions, and a two‑thirds majority vote. Vacancies also occur automatically upon conviction for an indictable offence, becoming an insolvent under administration, election to a parliament, disqualification from managing corporations, ceasing to be eligible for the category of membership, or failing to attend three consecutive ordinary meetings without prior approval (Sch 1 cl 4(1)). Members who hold office beyond 12 years may be removed? Actually, reappointment is limited by Sch 1 cl 2, but a Council resolution can allow continuation beyond 12 years. There is no independent enforcement body under the Act; compliance is largely self‑enforced by the Council. The Minister can remove government appointed members at any time (s 12(5)). The Auditor‑General audits companies controlled by the University (ss 49‑51) and may investigate commercial activities at the Minister’s request (s 60). Failure to comply with guidelines does not invalidate commercial agreements (s 58(2)), but the Council must ensure compliance, and the Minister may request reports (s 59). Borrowing without Treasurer approval may be void or unauthorised, but the Act does not specify a penalty; it merely requires approval as a condition of exercising the power (s 45(2)). Similarly, disposing of land without required Minister approval would likely render the disposition void or challengeable, though the Act does not expressly state invalidity. The Act does provide that section 37 has effect despite any Act or law to the contrary (s 37(5)), reinforcing the restriction. Overall, the enforcement architecture relies on internal governance, ministerial oversight, audit, and civil debt recovery for fines, rather than criminal sanctions.

The Deakin University Act 2009 interacts with several other Victorian and Commonwealth laws. Section 33 expressly provides that university statutes and regulations are not statutory rules under the Subordinate Legislation Act 1994 and are not subordinate instruments under section 32 of the Interpretation of Legislation Act 1984. This exempts them from the usual tabling and scrutiny requirements for delegated legislation, though university statutes still require Ministerial approval (s 31). Section 45(2) requires the Treasurer’s approval for borrowing, and the note to section 45 refers to the definition of “ADI” in the Interpretation of Legislation Act 1984. Section 46(2) permits endowment funds to be invested under the Trustee Act 1958. Section 36 incorporates the Land Acquisition and Compensation Act 1986 for compulsory acquisition of land, and section 36(6) allows Crown land to be granted under the Land Act 1958 or reserved under the Crown Land (Reserves) Act 1978. Section 47 requires audit in accordance with guidelines, but section 49 and 50 mandate that companies controlled by the University be audited by the Auditor‑General under the Audit Act 1994. Section 51(1)(c) requires statements of accounts to be prepared in a form approved by the Minister administering Part 7 of the Financial Management Act 1994. Section 48 allows the University to be a member of or form companies under the Corporations Act (Commonwealth). Section 14(2)(a) disqualifies persons disqualified from managing corporations under Part 2D.6 of the Corporations Act. Section 63(6) applies Part 5A of the Subordinate Legislation Act 1994 to Orders in Council as if they were legislative instruments tabled under section 16B of that Act. Section 65 and 75 preserve the operation of the Interpretation of Legislation Act 1984 for transitional provisions. Section 71 ensures gifts and trusts do not fail due to the repeal of the old Act. Section 73(3) provides that transitional regulations have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or subordinate instrument, giving them paramountcy. The Act does not explicitly state that it binds the Crown, but as a university statute, it may be implied. The Visitor, being the Governor, has only ceremonial functions and no dispute resolution powers (s 22), which ousts the traditional visitorial jurisdiction. This interacts with the general law, removing any residual visitor power to hear internal disputes. The Act also interacts with the Education and Training Reform Act 2006 and other education‑related legislation through the amending Acts (e.g., the 2015 TAFE and University Governance Reform Act). The guidelines approved under section 55 are not statutory instruments but must be published in the Government Gazette (s 56). They must not be inconsistent with university statutes or regulations (s 57). The Act also provides that a certificate under section 62 is prima facie evidence in courts, affecting evidentiary rules. Finally, the definition of “university commercial activity” in section 3 allows the Minister to declare activities in or out of that definition by order under section 52, which interacts with guidelines and reporting obligations.

The Deakin University Act 2009 (No. 71 of 2009) received assent on 1 December 2009 and came into operation on 1 January 2011 by default under section 2(2). The version incorporated in this deep dive is Version No. 007, incorporating amendments as at 15 October 2018. The Act has been amended by five subsequent Acts. First, the Education and Training Reform Amendment (Skills) Act 2010 (No. 71/2010) amended sections 5, 10, 26, 31, 52, 54, and Schedule 1, primarily to update references (e.g., substituting section 5(h) on conferring degrees, amending section 10, and updating section 31(3) and 52). It commenced on 1 April 2011. Second, the Education Legislation Amendment (VET Sector, Universities and Other Matters) Act 2012 (No. 39/2012) inserted new clauses 4A, 4B and 4C into Schedule 1 on 27 June 2012, dealing with leave of absence for Council members and acting members. Third, and most significantly, the Education Legislation Amendment (Governance) Act 2012 (No. 73/2012) commenced on 1 January 2013 and made extensive changes. It repealed the definitions of “appointed member” and “elected member” in section 3, inserted a new definition of “government appointed member”, substituted a new section 11 on Council membership (removing the previous categories and establishing fixed numbers by Order in Council), inserted section 11A (pending Order), amended sections 12, 13, and 14, inserted section 63 on Orders in Council, and made numerous amendments to Schedule 1 (including replacing terms of office, updating clauses 1, 2, 5, 6, 7, 8, 12, and 16). It also substituted a new Division 3 in Part 8 (further transitional provisions) with sections 74‑78, covering the reconstituted Council and members. Fourth, the Education Legislation Amendment (TAFE and University Governance Reform) Act 2015 (No. 69/2015) commenced on 1 January 2016. It re‑inserted definitions of “elected member” into section 3, substituted section 11(1) and inserted section 11(4A) and (5A), substituted section 11A, amended sections 29, 63, and numerous Schedule 1 clauses (1, 2, 5, 6, 7, 8, 10, 16). It also inserted a new Division 4 in Part 8 with section 79, providing transitional arrangements for introducing elected members and increased Council size. Fifth, the Education Legislation Amendment (Victorian Institute of Teaching, TAFE and Other Matters) Act 2018 (No. 31/2018) commenced on 15 October 2018. It substituted Schedule 1 clause 1(1)(a) and (b) concerning the terms of government appointed and Council appointed members (limited to 3 years), repealed clause 1(2) and (3), and amended clause 8 on casual vacancies. It also inserted section 80 transitional provision. The Act has no amendments not in operation as of the version date.

The Act itself does not mention any litigation or cases. As an analyst, we cannot invent case law. However, we can note features of the Act that affect its susceptibility to litigation. Section 22 expressly provides that the Visitor has no powers, duties or functions with respect to the resolution of disputes. This ousts the traditional common law visitorial jurisdiction, meaning that internal disputes (e.g., between the University and staff or students) must be resolved through other mechanisms such as judicial review, contract law, or administrative law rather than by the Visitor. This could lead to litigation in the Supreme Court if the University’s actions are challenged. Section 34 provides that a verified copy of a university statute or regulation under the common seal is sufficient evidence in all courts and tribunals, which may affect evidentiary burdens in proceedings. Section 62 gives a certificate signed by the Vice‑Chancellor prima facie evidentiary weight for fines, which could be challenged in civil debt recovery proceedings. Section 58(2) states that failure to comply with guidelines does not invalidate any commercial agreement, which may limit arguments based on non‑compliance in contractual disputes. Section 16 of Schedule 1 validates acts or decisions of the Council or its committees despite defects in appointment or election of members or vacancies, which may protect the University from challenges to decisions based on procedural irregularities. The Act’s provisions on removal of Council members (Sch 1 cl 3) may be subject to judicial review if procedural fairness is not observed. Similarly, the power to revoke degrees under section 10(3) and (4) (if provided by statute) could be challenged. There is no express privative clause ousting judicial review. The Act also interacts with the Charter of Human Rights and Responsibilities Act 2006, as section 73(3) gives transitional regulations effect despite anything in other Acts except the Charter, indicating that Charter rights are preserved against those regulations. Litigation might arise over the application of the Charter to University decisions, though the University is a public authority under the Charter. Overall, the Act provides several protections against invalidity, but does not foreclose litigation entirely.

Practitioners should watch for several nuanced provisions. First, the 12‑year cumulative membership cap in Schedule 1 clause 2 applies whether the membership is consecutive or not. However, it can be overridden by a Council resolution. The cap applies to all members except those who are ex officio (Chancellor is not an official member? The Chancellor is an official member under s 11(2)(a), but the cap likely applies to appointed and elected members; the clause says “member of the Council” but does not expressly exclude official members. Read with s 11(2), official members include the Chancellor, VC, and academic board president. The cap may not apply to them because they hold office by virtue of their position, not by appointment or election for a term. The term of office for official members is not fixed by the Act: the Chancellor holds office for up to 5 years (s 24(4)), the VC holds office under a contract, and the academic board president holds office under the board’s constitution. The cap likely applies only to government appointed, Council appointed, and elected members. But careful: clause 2(1) says “a member of the Council” without exception. The note in the Act is silent. This could be a trap: if a person serves as an elected member for many years and later as a government appointed member, the clock is cumulative. Seek legal advice. Second, the Minister’s approval for land disposal (s 37) is required for land granted under s 36(6)(a) without any monetary threshold, and for other land in fee simple if the consideration exceeds $5 million (or a greater Gazette amount). Investment lands are exempt from subsections 37(3) and (4) (s 38). But note that the exemption applies only if, in the Council’s opinion, the land was acquired for investment purposes. This is subjective but could be challenged. Third, borrowing under s 45 requires Treasurer approval on conditions as to security and otherwise. Failure to obtain approval may render the borrowing void or ultra vires; the Act does not say it is void, but the power is conditional. Fourth, guidelines under Part 6 are not statutory instruments but must be complied with by the Council (s 58). However, non‑compliance does not invalidate commercial agreements (s 58(2)). This creates a risk: the University may enter a transaction that breaches guidelines, but the counterparty cannot rely on invalidity. The Council member duties in s 15 still apply, and breach could lead to removal or personal liability (though indemnity under s 19 covers good‑faith acts). Fifth, the definition of “university commercial activity” in s 3 includes activities declared by the Minister under s 52, but also includes any commercial activity engaged in by or on behalf of the University. This could catch activities the Council did not intend to be covered. Sixth, the quorum for Council meetings is a majority of members holding office for the time being, excluding those on leave of absence (Sch 1 cl 12(1)). This means a quorum could be more than half of the current members; if there are many vacancies, a quorum may be difficult to achieve. Seventh, casual vacancies for elected members are treated as casual vacancies under Sch 1 cl 7, but if an election fails to fill all vacancies, they are taken to be casual vacancies and must be filled by election (not appointment). Eighth, the 2‑year term for student elected members (Sch 1 cl 1(1)(d)) is shorter than the 3‑year term for staff elected members (cl 1(1)(c)). Ninth, the Council may remove a member only for failure to comply with responsibilities (Sch 1 cl 3(2)), but the responsibilities in s 15 include acting in good faith and avoiding conflicts. This may be a narrow ground. Tenth, the validation provision in Sch 1 cl 16 protects acts despite defects in appointment or election, but not if there was no appointment at all (e.g., a person purporting to act without any colour of authority). Finally, the Act does not specify a maximum size for the Council once an Order in Council is made under s 63; the Order fixes the number. Until then, s 11A caps the Council at 21 members. After an Order, the number could be larger if the Order so provides.

Compliance with the Deakin University Act 2009 requires attention to several structural and procedural requirements. For the Council, the most critical step is ensuring that the composition of the Council meets the Act’s requirements: the number of government appointed members must equal or exceed the number of Council appointed members (s 11(5)); at least two members among government appointed and Council appointed must have financial expertise, and one must have commercial expertise at a senior level (s 11(5A)); and elected members must be elected in accordance with university statutes and regulations (s 11(4A)). The Council must also ensure that an Order in Council is requested under s 63 to fix the numbers, or the default provisions in s 11A apply. The Council must comply with Schedule 1 on meeting procedures, including quorum, voting, chairperson, declaration of interests, and resolutions without meetings. Members must comply with their duties under s 15: acting in good faith, with reasonable care and diligence, avoiding conflicts (or declaring them under Sch 1 cl 11). The Council must arrange annual audits of the University’s income and expenditure in accordance with guidelines (s 47). For land transactions, the Council must obtain the Minister’s prior approval before alienating land granted under s 36(6)(a) (s 37(1)), before alienating other land in fee simple if the consideration exceeds $5 million (s 37(3)), and before granting a lease over 21 years of other land (s 37(4)). Investment lands are exempt but should be documented as such. For borrowing, the University must obtain the Treasurer’s approval on conditions (s 45(2)). For commercial activities, the University must comply with any guidelines approved under s 55. The Council must ensure compliance with guidelines, though failure does not invalidate agreements (s 58). The University must submit to the Minister any guidelines it proposes for approval, and the Minister may make interim guidelines (ss 53, 55). The University must also ensure that any controlled companies are audited by the Auditor‑General (ss 49‑51) and that the University pays the costs of those audits (s 51(3)). For trust funds, the University must adhere to the rules on investment common funds (ss 40‑42) and must not deduct more than 5% commission from trust fund income (s 42). The Vice‑Chancellor should maintain clear delegation instruments under s 26(7) and ensure that staff are properly appointed. University statutes and regulations must be made in the correct form (common seal, Ministerial approval for statutes) (s 31). They should be publicly available (s 31(2)). The Council should review its membership regularly to ensure no member is disqualified under s 14 (parliamentary membership, disqualification from managing corporations, indictable offence). Elections for elected members must be conducted in accordance with the Act and university statutes (Sch 1 cl 6). Any casual vacancy must be filled promptly, subject to the exceptions in cl 8(5) (within 3 months for appointed members, 6 months for elected members). The Council should also maintain records of interests declared by members meeting complies with cl 11. Finally, the University should keep copies of all Orders in Council under s 63 and ensure they are gazetted and tabled in Parliament.