Macquarie University By-law 2005

The by-law operates through a set of defined roles, bodies, and processes. At the centre is the Council, the University’s governing body. Council members fall into three broad categories: elected members (academic staff, non-academic staff, and a student), graduate members under section 8E of the Act, and appointed members under sections 8F and 8G. The by-law distinguishes these categories carefully because different qualification, election, and appointment rules apply to each. For elected members, eligibility to vote and stand for election is tied to staff or student status at the close of nominations (clauses 5-7). The by-law also introduces the concept of “external person” as defined in Division 1 of Part 2 of the Act, which applies to appointed members.

A key structural concept is the Nominations Committee, established by the Council under clause 14. This committee has a central role in identifying and recommending candidates for appointed Council member positions. It must consider expertise, external networks, contribution to Council effectiveness, and other matters under section 8C of the Act (clause 15(3)). The committee’s recommendations include its assessment against those criteria (clause 15(4)). The Council then determines which persons to suggest for ministerial appointment or to appoint directly, and the length of appointment.

Casual vacancies are treated differently depending on the category of member and the timing of the vacancy. For elected academic and non-academic staff members, a vacancy occurring within the first two years of the term triggers a further election (clause 10(1)). If the vacancy occurs later, the Council must appoint the person last eliminated in the last election who remains eligible and available (clause 10(2)). If that is impossible, the Council appoints any qualified person (clause 10(3)). For the elected student member, the Council always appoints the last eliminated candidate (clause 11(1)), with a fallback appointment by the Council if needed (clause 11(2)). For ministerially appointed members, the Chancellor forwards a suggested name from previous recommendations (clause 16). For Council-appointed graduate and other members under sections 8E and 8F, the Council appoints from previous recommendations (clause 17).

The concept of “close of nominations” and “close of the poll” are defined precisely in clause 3(1) as the date and time specified in election notices. The by-law uses these time points to determine eligibility and to trigger procedural deadlines. The Registrar is the returning officer for all elections and has broad discretion in conducting them subject to the Schedule (Schedule 1, clause 2). The voting method is the quota-preferential method, using the Proportional Representation Manual (Schedule 1, clause 9(7)). The by-law also establishes the Roll of Students (clause 8) and Roll of Convocation (clause 26), which determine eligibility for student elections and Convocation membership respectively. Finally, the by-law empowers rule-making by the Council and Vice-Chancellor, but ensures Council rules prevail in case of inconsistency (clause 36).

The by-law directly affects every person who holds a governance or prescribed administrative role at Macquarie University. Its primary audience is the Council itself, including its elected, graduate, and appointed members. The by-law determines who can be elected, how elections are conducted, and how appointments are made. It also affects those who nominate, second, and vote in Council elections: academic staff, non-academic staff, and students. For academic and non-academic staff, eligibility is based on holding that category of employment at the close of nominations (clauses 5 and 6). For students, eligibility requires that the person’s name appears on the Roll of Students as a full-time or part-time student at the close of nominations (clause 7). This means the by-law reaches every current staff member and student who may wish to participate in Council elections.

The by-law also affects the Nominations Committee, a body appointed by the Council. Committee members must carry out the identification and recommendation processes for appointed Council members. They are required to consider specific criteria and to assess candidates. Committee members themselves are not defined in the by-law beyond a requirement that the committee consist of at least five persons (clause 14(1)). The Chancellor and Deputy Chancellor are affected as office-holders: the Chancellor must forward certain recommendations to the Minister (clause 15(6), clause 16(1)) and both are ex-officio members of all committees except certain Convocation committees (clause 21). The Vice-Chancellor is a central figure under the by-law, with broad responsibility for the University’s academic, administrative, financial and other business (clause 22), and is a member of every committee or board within the University (clause 23). The Vice-Chancellor also has authority to accept staff resignations and approve salary progression (clause 24(3)).

The Registrar carries significant operational duties: keeping the Roll of Students (clause 8) and Roll of Convocation (clause 26), serving as returning officer for elections (Schedule 1, clause 2), maintaining the Register of Use of the Common Seal (clause 32), and conducting the draw for candidate order on voting forms (Schedule 1, clause 6(1)). The by-law also affects members of Convocation, who are identified in clause 25 and the Act. Convocation membership is conferred on certain graduates and staff, and those persons may be invited to vote in certain elections or serve on committees.

The Minister for Education (or relevant portfolio minister) is affected because certain Council appointments require ministerial consideration and appointment under section 8G of the Act. The by-law requires the Chancellor to forward names to the Minister for consideration (clause 15(6), clause 16). The Minister does not have a role in internal elections or Council-appointed positions. Finally, any person who is the subject of a casual vacancy appointment process is affected: the by-law creates a mechanism where the last eliminated candidate in an election may be appointed without a fresh election, and that person’s eligibility and availability are relevant.

The by-law creates a range of duties and rights, principally in relation to governance and elections. The Vice-Chancellor has specific statutory duties under clause 22: subject to any resolution of the Council, the Vice-Chancellor must promote the interests and further the development of the University; be responsible for its academic, administrative, financial and other business; and exercise general supervision over all persons in the service of the University and over the welfare and discipline of students. This is a broad duty of management and oversight. Additionally, the Vice-Chancellor has authority under clause 24(2) to do what is necessary or convenient to give effect to Part 4, and under clause 24(3) has express powers to accept staff resignations and approve salary progression.

The Council has a duty to establish a Nominations Committee (clause 14(1)). That committee has a duty, under clause 15(1), to begin the identification process for appointed members at least six months before the incumbent’s term expires. The committee must identify needed expertise and experience, identify suitable persons, determine which to recommend, recommend length of appointment, and forward those recommendations to the Council. The committee must consider the criteria listed in clause 15(3), including external networks and capacity to understand the community’s needs, contribution to Council effectiveness, complementarity with existing members, and the matters in section 8C of the Act. The committee’s recommendations must include its assessment against those criteria (clause 15(4)). The Council must then consider the recommendations and determine which persons to suggest for ministerial appointment or to appoint directly (clause 15(5)).

The Registrar has duties to keep the Roll of Students (clause 8) and Roll of Convocation (clause 26) in such manner and subject to such conditions as the Registrar determines. The Registrar must also conduct elections as returning officer (Schedule 1, clause 2), give notices of election (Schedule 1, clause 4), and decide whether voting forms are accepted or rejected (Schedule 1, clause 9(3)). The Registrar may make data processing equipment available (Schedule 1, clause 9(8)) and may make determinations necessary to produce a final result, and those determinations are final (Schedule 1, clause 9(9)).

Rights under the by-law are primarily electoral. Staff members who are academic or non-academic at the close of nominations have the right to vote and to stand for election for their respective Council positions (clauses 5 and 6). Students whose names appear on the Roll of Students have the same rights for the student member position (clause 7). Voters have the right to mark their preferences using the figure “1” for first preference and subsequent numbers for further preferences (Schedule 1, clause 8(1) and (2)). Candidates have the right to nominate one scrutineer to represent them at the draw for candidate order and at the counting of votes (Schedule 1, clauses 6(2) and 9(4)). Candidates also have the right to supply a statement not exceeding 150 words to accompany the voting form, provided it is supplied within three days after close of nominations or such later time as the Registrar permits (Schedule 1, clause 7(1)(b)). Elected members have a right to hold office for the prescribed term: two years for all elected Council members (clause 9). Members appointed to fill casual vacancies hold office for the unexpired portion of the predecessor’s term (clauses 10(4), 11(3), 16(3), 17(3)). The Chancellor and Deputy Chancellor have the right, by virtue of office, to be members of all committees constituted by the by-law or by the Council (other than the Standing Committee and any committee of Convocation) and all boards within the University (clause 21(1)). The Chancellor may preside at any committee or board meeting and has the rights and duties of chairperson (clause 21(2)). The Deputy Chancellor has similar rights in the Chancellor’s absence (clause 21(3)).

The by-law itself does not prescribe penalties. It is a procedural and administrative instrument that sets out how the University’s governance bodies are constituted and how they function. Enforcement of the by-law is primarily through the internal decision-making of the Registrar and the Council, and through the finality of certain determinations. For example, the Registrar’s decision to accept or reject a voting form is final (Schedule 1, clause 9(3)), and the Registrar may make any determination necessary to produce a final result in an election, and that determination is final (Schedule 1, clause 9(9)). This means a candidate or voter who disagrees with the Registrar’s decision has no further recourse within the by-law framework; any challenge would likely need to be brought under administrative law principles, such as judicial review, but the by-law itself does not provide for an appeal.

The by-law also provides that failure to comply with the requirement to publish rules on the University website or in an official University publication does not invalidate a rule (clause 35(5)). This suggests that the by-law does not treat non-publication as a fatal error; the rule remains valid. However, it also suggests that the obligation to publish is directory rather than mandatory. There is no explicit penalty for the Registrar failing to keep the Roll of Students or Roll of Convocation in accordance with the by-law, though such a failure could have consequences for the validity of an election.

The by-law does not create criminal offences or civil penalties. It does not refer to disciplinary actions or sanctions for individuals who breach its provisions. The only potential enforcement mechanism is that the Council, as the governing body, could take action against an officer who fails to comply, but the by-law does not spell that out. For example, if the Vice-Chancellor fails to perform functions under clause 22, the Council could presumably pass a resolution affecting the Vice-Chancellor’s powers, but the by-law does not set out a specific process. Similarly, if an election is conducted improperly, the result could be challenged in court, but the by-law does not provide for a formal election petition.

The by-law’s approach is to set out rules and trust that officeholders and the Registrar will comply. The only direct enforcement provision is the finality of the Registrar’s determinations and the rule that late voting forms are not accepted (Schedule 1, clause 9(2)). The by-law also provides that a person who ceases to be eligible for office may be removed from office under the Act, but the by-law itself does not create a removal mechanism. In summary, the by-law relies on the legal framework of the Act and general administrative law for enforcement, rather than self-contained penalties.

The Macquarie University By-law 2005 is a subordinate legislative instrument made under the Macquarie University Act 1989. The by-law must be read together with the Act, which is referred to throughout as “the Act” (clause 3(1)). The by-law does not replace the Act; it fills in details on which the Act provides for prescription. For example, section 9(1)(c) and (d) of the Act allows the by-law to prescribe terms of office for elected members, and clause 9 does so. Section 10(2) of the Act allows the by-law to prescribe the term for the Chancellor, and clause 18 sets it at four years. Section 15(1)(b) of the Act allows for additional members of the Academic Senate, and clause 27(1) provides that those additional members are as determined by rules made by the Council.

The by-law explicitly references several sections of the Act: sections 8D, 8E, 8F, 8G (elected and appointed members), section 8C (matters for consideration by the Nominations Committee), section 9(1)(c) and (d) (terms of office), section 10(2) (Chancellor’s term), section 14 (Convocation), section 15(1)(b) (Academic Senate), and section 29(1) (rule-making power). The note to clause 35(3) lists matters for which by-laws may empower rule-making, including sections 3(2), 8D, 8E, 8F, 10(2), 14(1), 16(1)(d) and (e), 23, 28(1)(b) and (k), and clause 3 of Schedule 1 to the Act. This note is not part of the by-law (clause 3(4)) but provides useful context.

The by-law also interacts with other university rules made under clauses 35 and 36. The Council may make rules for any matter for which rules may be made under the Act or the by-law (clause 35(1)). The Vice-Chancellor may make rules not inconsistent with Council rules for any matter for which rules may be made under the Act (clause 35(2)), but may not make rules for matters the Council alone is empowered to make under the by-law (clause 35(3)). If the Vice-Chancellor makes a rule inconsistent with a Council rule, the Council rule prevails (clause 36). This means the by-law creates a hierarchy: Act, by-law, Council rules, Vice-Chancellor’s rules (subject to consistency). The by-law also provides that rules must be published on the University website or in another official publication (clause 35(4)), but failure to publish does not invalidate the rule (clause 35(5)).

The by-law does not directly interact with other state or federal legislation, though it operates within the broader framework of New South Wales law for statutory corporations. The Act itself is the primary source; the by-law is one step down. Any action taken under the by-law must also comply with other applicable laws, such as anti-discrimination legislation, privacy laws, and workplace laws. For example, elections for staff representatives must comply with workplace laws, but the by-law does not reference them. Similarly, the use of the common seal and the arms may need to comply with trade marks or other intellectual property laws, but the by-law does not address that.

The by-law has been amended by several later statutory instruments. The amendment history is recorded in square brackets at the end of each amended clause. Clause 3 (interpretation) was amended by 2012 (582), Schedule 2 [1]. Clause 5 (academic staff elections) and clause 6 (non-academic staff elections) were each amended by 2012 (582), Schedule 2 [2] and [3] respectively. Clause 7 (student member) was amended by 2014 No 88, Schedule 2.39 [1]. Clause 9 (term of office of elected members) was substituted entirely by 2012 (582), Schedule 2 [4]. Clause 10 (casual vacancy for staff members) was amended by 2012 (582), Schedule 2 [5]. Clause 11 (casual vacancy for student member) was amended by 2014 No 88, Schedule 2.39 [1]. Clauses 12 and 13 were repealed by 2012 (582), Schedule 2 [6]; clause 12 had been amended by 2011 (21), Schedule 1 [1] and 2011 No 27, Schedule 2.28. Clause 14 (Nominations Committee) was amended by 2011 (21), Schedule 1 [2] and by 2018 No 68, Schedule 1.17 [1]. Clause 15 (nomination procedures) was amended by 2012 (582), Schedule 2 [7] to [10]. Clauses 16 and 17 (casual vacancies for appointed members) were amended by 2012 (582), Schedule 2 [11]-[13]. Clause 18 (term of Chancellor) was amended by 2018 No 68, Schedule 1.17 [2]. Clause 27 (Academic Senate) was substituted by 2011 (21), Schedule 1 [3]. Clause 35 (making of rules) was amended by 2011 (21), Schedule 1 [4] and by 2012 (582), Schedule 2 [14] [15]. The heading to Schedule 1 and the note in the Schedule were amended by 2012 (582), Schedule 2 [16] and 2014 No 88, Schedule 2.39 [2].

The amending instruments are identified by their year and number, which correspond to New South Wales statutory rules or Acts. For example, “2012 (582)” is a statutory rule; “2014 No 88” is an Act (likely a miscellaneous amendments Act). The history shows that the by-law was substantially amended in 2011 and 2012 to update the governance provisions, particularly regarding elected members’ terms and appointments, and again in 2014 and 2018 for minor amendments. The original by-law was made in 2005, repealing and replacing the earlier Macquarie University By-laws (clause 37). No subsequent principal repeal or replacement has occurred; the by-law remains in force as amended.

Understanding the amendment history is important because several provisions have changed over time, and the current version may differ from what a reader might expect based on earlier versions. For instance, clauses 12 and 13 were repealed, so there are no longer separate provisions for graduate member appointment procedures beyond what remains in clauses 14-17. The 2012 amendments also substituted clause 9 to set a uniform two-year term for all elected Council members, replacing earlier terms that may have differed. The 2014 amendments updated the student member provisions to reflect changes in the Act.

The by-law itself does not cite any court cases, and there is no mention of litigation within the text. It is not possible from the by-law alone to know whether there has been litigation concerning its provisions. However, given that the by-law governs elections and appointments to a university council, it is plausible that any litigation would concern the validity of an election or the eligibility of a candidate. The by-law provides that the Registrar’s determination on the acceptance or rejection of a voting form is final (Schedule 1, clause 9(3)) and that the Registrar may make such determination as necessary to produce a final result, and that determination is final (Schedule 1, clause 9(9)). This finality clause may be intended to limit the scope of judicial review, but it would not oust the supervisory jurisdiction of the courts. In practice, challenges to university elections in New South Wales have been brought under the Act or under administrative law, but the by-law does not reference any such cases.

The by-law also does not create any civil liability or offence, so there is no basis for private litigation for breach of the by-law. Disputes over the application of the by-law would most likely be resolved internally through the Council or the Registrar, or through the making of further rules to clarify ambiguities. The by-law’s provisions on casual vacancies and the requirement that at least one academic staff Council member have professorial rank (Schedule 1, clause 9(6)) could give rise to legal questions if an appointment is made that does not satisfy that condition, but again, no cases are recorded in the by-law.

A thorough search of case law would be needed to determine whether any judgments have interpreted the by-law or its predecessor. Because the by-law is subordinate legislation, any litigation would likely be against the University under the Act rather than under the by-law itself. For this deep dive, we must state that the by-law contains no reference to litigation, and we cannot invent any.

The by-law contains several provisions that may catch the unwary. First, the timing requirements for elections are strict. Schedule 1, clause 3 requires that between the notice of election and close of nominations there must be at least 14 and not more than 28 days; between close of nominations and posting of voting forms, not more than 28 days; and between posting of voting forms and the due date for completed forms, at least 14 and not more than 60 days. These are minimum and maximum intervals; failing to adhere to them could invalidate the election. The Registrar must allow these intervals; there is no discretion to shorten the minimums.

Second, the definition of “close of nominations” and “close of the poll” are tied to the date and time specified in the notice of election (clause 3(1)). Eligibility to vote and stand for election is determined at the close of nominations, not when voting occurs or when the election is declared. This means a person who becomes a staff member after the close of nominations cannot vote, and a person who leaves before that time cannot stand. Conversely, a person who is on the Roll of Students at close of nominations is eligible even if they cease to be enrolled before voting ends. The by-law does not provide for updating the roll after close of nominations.

Third, the casual vacancy provisions for elected staff members are not uniform. If a casual vacancy occurs within the first two years of a staff member’s term, a fresh election must be held (clause 10(1)). If the vacancy occurs later, the Council must appoint the person last eliminated in the last election, provided that person is still eligible and available (clause 10(2)). If that is not possible, the Council appoints any qualified person (clause 10(3)). For the student member, however, the Council always appoints the last eliminated candidate (clause 11(1)) regardless of when the vacancy occurs. There is no option for a fresh election for student casual vacancies. This asymmetry could be overlooked by someone accustomed to the staff rules.

Fourth, the by-law requires that at least one of the elected academic staff members of the Council must have professorial rank (Schedule 1, clause 9(6)). This is a mandatory requirement that applies despite any other provision. If no professorial-rank candidate is elected, the result may not be valid. The Registrar must ensure this requirement is met, but the by-law does not specify a process if it is not. The requirement could create complications if all elected academic staff members are non-professorial.

Fifth, the notes in the by-law do not form part of it (clause 3(4)). This means that the note to clause 35(3) listing the matters for which rules may be made is for guidance only. A rule could be valid even if it is not on that list, provided it is within the Act’s rule-making power. Conversely, a rule that is on the list but exceeds the power would still be invalid.

Sixth, rule publication is required under clause 35(4), but failure to publish does not invalidate the rule (clause 35(5)). A rule may be enforceable even if no one has seen it. This is a significant trap for anyone affected by rules who assumes that non-publication renders the rule ineffective.

Seventh, the by-law provides that the Registrar’s determination is final (Schedule 1, clause 9(9)). There is no appeal mechanism within the by-law. A candidate who believes an error occurred cannot ask for a recount or review; the only avenue is potentially judicial review, which is costly and limited.

Eighth, the by-law applies only to Macquarie University (clause 2). It does not apply to other universities. This is obvious but worth noting because the by-law is often cited as a model.

Ninth, the definition of “posting” in Schedule 1, clause 1 includes electronic means. This means that notices can be sent by email, and voting may be conducted electronically. However, for student elections, the notice must also be published on the University website and twice in a daily newspaper circulating in Sydney and elsewhere in the State (Schedule 1, clause 4(1)(b)(ii)). This additional requirement for student elections could be overlooked.

Tenth, the by-law gives the Vice-Chancellor authority to make rules for matters under the Act (clause 35(2)), but not for matters the Council alone is empowered to make rules under the by-law (clause 35(3)). If the by-law does not expressly reserve a matter to the Council, the Vice-Chancellor may make rules, subject to inconsistency with Council rules (clause 36). This delegation could be overlooked by those who assume only the Council can make rules for governance matters.

Compliance with the by-law requires careful attention to its procedural requirements. For anyone involved in Council elections, the starting point is the Schedule 1 procedures. The Registrar must issue a notice of election within the prescribed timing windows. For staff elections, the notice must be posted or delivered to each eligible voter’s last known email or postal address (Schedule 1, clause 4(1)(a)). For student elections, the notice must be published on the University website and twice in a daily newspaper, and also sent to each off-campus student (Schedule 1, clause 4(1)(b)). The notice must state the number of persons to be elected, qualifications for candidature, and the form and deadline for nominations (Schedule 1, clause 4(2)).

Nominations must be on separate forms for each candidate, signed by a proposer and seconder who are qualified voters, and accompanied by the candidate’s written consent (Schedule 1, clause 5(2)). If the number of nominations equals or is less than the number of vacancies, the Registrar must declare those nominated elected (clause 5(3)). If more nominations than vacancies, an election must proceed (clause 5(4)). The Registrar must then draw lots to determine the order of candidates on the voting form (Schedule 1, clause 6(1)), and each candidate may nominate a scrutineer for the draw (clause 6(2)). Candidates may also submit a statement of up to 150 words to accompany the voting form, provided it is received no later than three days after close of nominations (or a later time permitted by the Registrar) (Schedule 1, clause 7(1)(b)).

Voting forms must be distributed along with a notice explaining how to complete and return the form, the deadline, any candidate statements, the names of proposers and seconders, a declaration of identity and entitlement, and envelopes (except for electronic elections) (Schedule 1, clause 7). Voters mark their preferences using numbers starting with “1” for first preference (Schedule 1, clause 8(1) and (2)). Completed forms must be received by the Registrar before the close of the poll; late forms are not accepted (Schedule 1, clause 9(2)). The Registrar decides whether to accept or reject each voting form (Schedule 1, clause 9(3)). After the poll closes, the Registrar or deputy must open envelopes (if paper), mix the voting form envelopes, and then open them and ascertain the result using the quota-preferential method as set out in the Proportional Representation Manual (Schedule 1, clause 9(1) and (7)). Each candidate may nominate one scrutineer to monitor counting (Schedule 1, clause 9(4)). The Registrar may use data processing equipment (clause 9(8)) and may make any determination necessary to produce a final result, which is final (clause 9(9)). The result must ensure at least one elected academic staff member has professorial rank (clause 9(6)).

For appointed members, the Council must ensure the Nominations Committee begins its work at least six months before an incumbent’s term expires (clause 15(1)). The committee must identify needed expertise and experience, identify suitable persons, determine recommendations, and forward them to the Council with assessments (clause 15(2)-(4)). The Council then determines which persons to suggest for ministerial appointment or to appoint directly (clause 15(5)). The Chancellor forwards the suggestions to the Minister (clause 15(6)). For casual vacancies, follow the specific clauses: for staff elected members, hold a new election if vacancy within first two years, otherwise appoint the last eliminated candidate (clause 10). For the student member, always appoint the last eliminated candidate (clause 11). For ministerially appointed vacancies, the Chancellor forwards a name from previous recommendations (clause 16). For Council-appointed vacancies, the Council appoints from previous recommendations (clause 17).

The common seal must be kept in the custody of the Registrar (clause 30). Its affixing must be attested by either the Chancellor, Deputy Chancellor, Vice-Chancellor, or a Deputy Vice-Chancellor, and by the Registrar (clause 31). The Registrar must maintain a Register of the Use of the Common Seal (clause 32). The University arms may only be used as the Council approves by resolution (clause 34). Rules made by the Council or Vice-Chancellor must be published on the University website or in another official publication (clause 35(4)). Although failure to publish does not invalidate a rule, best practice is to publish promptly to ensure affected persons are aware of the rule. The Vice-Chancellor must not make rules that are inconsistent with Council rules (clause 36) and must not make rules for matters the Council alone is empowered to make under the by-law (clause 35(3)). Any rule should be checked for consistency with the Act and the by-law before being made.