University of Melbourne Act 2009

The University. The University of Melbourne is declared to have been established on 11 April 1853 and continues as a body politic and corporate by the name “The University of Melbourne” (section 4). It consists of the Council, the staff (subject to exclusions), the graduates, the students, designated staff of affiliated colleges or other bodies, and emeritus professors (section 4(3)). It has perpetual succession, may sue and be sued, and may acquire, hold, and dispose of property (section 6). Its general powers include entering contracts, fixing fees, employing staff, participating in companies and joint ventures (subject to guidelines), and doing anything else necessary or convenient for its objects (section 6(3)). The University has a common seal (section 7).

The Council. The Council is the governing body with general direction and superintendence of the University (section 8). Its membership comprises official members (Chancellor, Vice-Chancellor, president of the academic board), government appointed members (appointed by Governor in Council or Minister), Council appointed members, and elected members (staff and student representatives) (section 11). The exact numbers are fixed by Order in Council under section 63, subject to minimums and conditions (e.g., at least 2 members with financial expertise, 1 with commercial expertise). Government appointed members must equal or outnumber Council appointed members (section 11(5)). Members must not be members of any Australian parliament (section 14(1)) and are disqualified if disqualified from managing corporations or convicted of an indictable offence (section 14(2)). The Council has powers to delegate (except the power of delegation, appointing officers, and making statutes) (section 18). The Council must indemnify its members and committee members against actions done in good faith (section 19).

University statutes and regulations. The Council may make university statutes and university regulations on any matter relating to the University or persons on its property or using its facilities (section 28). Section 29 provides a non-exhaustive list of subject matters, including organisation, staff, discipline, academic dress, intellectual property, examinations, degrees, fees, trusts, elections, commercial activities, and affiliations. A statute must be in writing, have the common seal affixed, and be submitted to the Minister for approval (section 31). Statutes are not statutory rules under the Subordinate Legislation Act 1994 (section 33). Regulations are made under statutes and can be made by the Vice-Chancellor or academic board if authorised (section 30). The Minister’s guidelines for commercial activities must not be inconsistent with statutes or regulations (section 57).

Visitor. The Governor of Victoria is the Visitor but has only ceremonial functions; the Visitor has no powers to resolve disputes concerning University affairs aside from ceremonial matters (section 22). An acting Visitor may be authorised (section 23).

Officers. The Chancellor is appointed by the Council for up to 5 years (section 24). At least one deputy chancellor exists (section 25). The Vice-Chancellor is the chief executive officer responsible for conducting the University’s affairs (section 26). The Council may appoint an acting Vice-Chancellor and deputy vice-chancellors (section 27).

Affiliated colleges. Certain residential colleges are defined as affiliated colleges: Trinity, Ormond, Queen’s, Newman, University, St Hilda’s, Whitley, Janet Clarke Hall, and St Mary’s (section 3). Further colleges can be affiliated by statute (section 21(4)).

University commercial activity. Defined broadly as any commercial activity engaged in by or on behalf of the University, including activities declared by the Minister, and excluding any activity declared not to be such (section 3, section 52).

The Act directly affects the University itself as a body politic and corporate, its Council as the governing body, and all persons who are part of the University as defined in section 4(3): the Council, the staff (other than those excluded by Council), the graduates, the students, members of staff of affiliated colleges designated by Council, and emeritus professors. The Act also affects persons who are candidates, voters, or office-holders in elections for the Council, particularly the elected members from staff and students introduced by the 2015 amendments (section 11(4A)). The Minister for Education (or equivalent) is given numerous powers and functions under the Act: approving university statutes (section 31), appointing government appointed members (section 12(2)), approving land disposals (section 37), fixing remuneration for non-full-time members (section 16), approving guidelines for commercial activities (section 55), and making orders declaring university commercial activities (section 52). The Governor in Council appoints government appointed members on the Minister’s recommendation (section 12(1)) and may make Orders in Council fixing the number of Council members (section 63). The Treasurer must be consulted before guidelines are made or approved (section 54) and must approve borrowing limits and conditions after consultation with the Minister (section 45(2)). The Auditor-General audits certain companies controlled by the University (sections 49-51) and may be asked by the Minister to investigate a university commercial activity (section 60). The Act also affects affiliated colleges, which are continued under the new Act (section 72) and whose governing bodies can enjoy certain trust fund provisions (sections 39-42). The Act binds the Crown to the extent that land may be acquired by the Minister for the University (section 36). The broader public is affected through the University’s objects of serving the community and the requirement that guidelines for commercial activities be published (section 56) and that university statutes and regulations be made readily available to the public (section 31(2)). The Act also provides for fines imposed under statutes or regulations on staff, students, or persons entering or on University land - those fines are civil debts recoverable summarily (section 61) and may affect any such individual.

The Act imposes several key duties on the Council and its members. Under section 8(3), the Council’s primary responsibilities include appointing and monitoring the Vice-Chancellor, approving the mission and strategic direction and annual budget, overseeing management, establishing policy and procedural principles consistent with legal requirements and community expectations, approving systems of control and accountability, overseeing risk assessment and management including commercial activities, monitoring academic activities, and approving significant university commercial activities. Council members must act reasonably to ensure the Council carries out its functions appropriately, effectively, and efficiently (section 15(1)). In exercising responsibilities and duties, a member must act in good faith, honestly, and for proper purposes consistent with the objects and interests of the University; exercise reasonable skill, care, and diligence; and take reasonable steps to avoid conflicts of interest unless declared in accordance with Schedule 1 clause 11 (section 15(2)). A member must not make improper use of position or information acquired because of that position (section 15(3)). Failure to comply with these duties may lead to removal of the member by the Council under Schedule 1 clause 3, which requires notice and a two-thirds majority vote.

The Council has the duty to ensure compliance with any guidelines made or approved by the Minister under Part 6, although a failure to comply does not of itself invalidate any commercial agreement or action (section 58). The Council must arrange for an audit of the University’s income and expenditure in accordance with the guidelines (section 47). The Council also has the power to delegate its powers or functions to a member, committee, staff member, academic board, or other entity prescribed by statute, but cannot delegate the power of delegation, the power to appoint officers (Chancellor, deputy chancellor, Vice-Chancellor), or the power to make university statutes (section 18).

The University has the right to borrow money subject to Treasurer’s approval (section 45), to invest money of the University in any manner authorised by the Council (section 46), to create and administer trust funds and investment common funds (sections 39-40), and to participate in joint ventures and companies in accordance with guidelines (section 48). The University must indemnify its Council members and committee members against actions done in good faith (section 19). The University must apply all revenue solely for its objects or purposes (section 44).

Key individual rights include the right of a Council member to be heard before removal (Schedule 1 clause 3(d)), the right of a member to declare an interest in writing to the Chancellor (Schedule 1 clause 11(1)(b)), and the right of a member to receive remuneration and fees if fixed by the Minister, except for judges or full-time staff (section 16). A person fined under university statutes or regulations may dispute the fine, subject to the certificate being prima facie evidence (section 62).

The Act provides for fines imposed under university statutes or university regulations. Section 61 states that a fine imposed 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. This means the fine is not a criminal penalty; it can be enforced through civil debt recovery proceedings. To prove the amount of the fine, section 62 provides that a certificate in writing signed by the Vice-Chancellor or a designated person, giving particulars of the date and reasons for the imposition, is prima facie evidence of the facts stated in the certificate in all courts and before all persons acting judicially.

For Council members, the Act provides disciplinary measures under Schedule 1. A member may be removed from office by the Council if the Council is of the opinion that the member has failed to comply with the responsibilities of a Council member (Schedule 1 clause 3(2)). The removal process requires: notice of intention to move a removal motion at an ordinary meeting, with grounds set out; the notice given no later than the last ordinary meeting before the motion is put; if the member is absent, written notice of intention and grounds; an opportunity for the member to make submissions in writing or personally before the Council; and a two-thirds majority of members present passing the resolution on the stated grounds (Schedule 1 clause 3(3)). A member’s office also becomes vacant if the member is convicted of an indictable offence, becomes an insolvent under administration, is disqualified from managing corporations under the Corporations Act, ceases to be eligible for the category of member, is elected to a parliament, or fails to attend three consecutive ordinary meetings without prior approval (Schedule 1 clause 4).

The Act also imposes disqualifications from Council membership: a person who is a member of any Australian parliament cannot be a member (section 14(1)); a person is ineligible if disqualified from managing corporations under Part 2D.6 of the Corporations Act, or if convicted of an indictable offence (section 14(2)). These are ongoing eligibility requirements; if they arise during office, the office becomes vacant under Schedule 1 clause 4.

There are no criminal penalties in the Act itself for breach of its provisions; rather, the enforcement mechanisms are civil (fines, removal from office, and potential invalidity of acts if proper procedures not followed - but note the saving provision in Schedule 1 clause 16 which validates acts despite defects in appointment or election). The Minister may refer a university commercial activity to the Auditor-General for investigation and report (section 60). There is no specific offence provision for non-compliance with guidelines; rather, section 58 requires the Council to ensure compliance but non-compliance does not invalidate agreements.

The Act explicitly references and interacts with several other Victorian and Commonwealth laws. For the interpretation of the Act, the Interpretation of Legislation Act 1984 applies unless the contrary intention appears, as noted in the transitional divisions (sections 68, 79, and Schedule 1 clause 4C). University statutes and university regulations are expressly excluded from being statutory rules under the Subordinate Legislation Act 1994 (section 33(1)) and are not subordinate instruments under section 32 of the Interpretation of Legislation Act 1984 (section 33(2)). However, an Order in Council under section 63 (fixing Council member numbers) is treated as if it were a legislative instrument under Part 5A of the Subordinate Legislation Act 1994 for laying before Parliament (section 63(6)).

The Act interacts with the Audit Act 1994 in several places. Section 8(3)(e) requires the Council to approve systems of control and accountability, including those required to maintain a general overview of any entity over which the University has control within the meaning of section 3 of the Audit Act 1994. Sections 49-51 require that limited companies or other companies controlled by the University (as defined in the Audit Act) be audited annually by the Auditor-General, with additional requirements under the Corporations Act for limited companies (section 49(2)). The Auditor-General’s powers under the Audit Act apply (section 51(1)(a), 51(2)). The University must pay the costs of such audits to the Consolidated Fund (section 51(3)).

The Act interacts with the Land Acquisition and Compensation Act 1986 when land is acquired for the University by the Minister; that Act applies and the Minister is the Authority (section 36(3)). Land acquired compulsorily vests in the Crown under section 24 of that Act despite anything to the contrary (section 36(5)). The Land Act 1958 is also relevant: unalienated Crown land may be granted in fee simple to the University subject to conditions determined by the Governor in Council (section 36(6)). The Crown Land (Reserves) Act 1978 allows reservation of land for University purposes (section 36(6)(b)). Disposal of land granted under section 36(6)(a) requires prior Ministerial approval (section 37(1)); disposal of other land in fee simple for consideration over $5 million (or other amount fixed by Minister) also requires approval (section 37(3)); leases over 21 years also require approval (section 37(4)). Investment lands acquired for investment purposes are excluded from these limits (section 38).

The Act interacts with the Corporations Act: a person disqualified from managing corporations under Part 2D.6 is ineligible for Council membership (section 14(2)). For companies formed or held by the University, section 49(2) states that audit requirements under that section are in addition to those under the Corporations Act. The definition of “limited company” in section 3 refers to the Corporations Act meaning.

The Act references the Borrowing and Investment Powers Act 1987 for obtaining financial accommodation (section 45(1)(b)). The Financial Management Act 1994 Part 7 is referenced for the manner and form of accounts for controlled companies (section 51(1)(c)). The Trustee Act 1958 is referenced for investment of endowment funds held in perpetuity (section 46(2)). The Charter of Human Rights and Responsibilities Act 2006 is mentioned in section 77(3) as a law that cannot be overridden by transitional regulations.

The Act also preserves the operation of the Interpretation of Legislation Act 1984 sections 14 and 16 in transitional matters (sections 68, 79), and section 41 for acting appointments (Schedule 1 clause 4C). The Act notes that section 38 of the Interpretation of Legislation Act 1984 defines ADI for borrowing purposes (section 45 note).

There is no direct interaction with the Equal Opportunity Act or other anti-discrimination laws referenced in the Act, but the University’s objects include reflecting principles of equity and social justice (section 5(g)).

The University of Melbourne Act 2009 (No. 78/2009) received royal assent on 1 December 2009 and came into operation on 1 July 2010. It has been amended by six subsequent Acts up to the version consolidated as at 15 October 2018. The amending Acts and their key changes are as follows.

The Education and Training Reform Amendment (Skills) Act 2010 (No. 71/2010) made minor amendments, including updating references in sections 52, 54, and Schedule 1 clause 1(2) related to the Minister’s powers and council membership terms. Those amendments commenced on 1 April 2011.

The Education Legislation Amendment (VET Sector, Universities and Other Matters) Act 2012 (No. 39/2012) inserted new provisions into Schedule 1: clause 4A (leave of absence for Council members), clause 4B (terms of acting members), and clause 4C (operation of Interpretation of Legislation Act). It also amended the preamble. Those sections commenced on 27 June 2012.

The Education Legislation Amendment (Governance) Act 2012 (No. 73/2012) was a major reform. It commenced on 1 January 2013 and made extensive changes to Council membership and structure. It repealed the definitions of “appointed member” and “elected member” and inserted a new definition of “government appointed member” (section 3). It substituted section 11 entirely, establishing a new composition: official members, government appointed members (minimum 4), Council appointed members (minimum 1 or more), and elected members (to be introduced later). It inserted section 11A as a transitional composition pending an Order in Council. It amended sections 12, 13, and others to reflect the new categories. It inserted section 63 empowering the Governor in Council to fix member numbers by Order in Council on the Council’s request with a two-thirds majority. It also amended Schedule 1 provisions on terms, removal, and filling vacancies. It inserted new Division 4 of Part 8 (sections 78-82) with further transitional provisions saving the reconstituted Council and members.

The Education Legislation Amendment (TAFE and University Governance Reform) Act 2015 (No. 69/2015) commenced on 1 January 2016 and introduced elected members to the Council. It substituted section 11(1) to include a fixed number of elected members, inserted section 11(4A) defining elected members as staff-elected and student-elected persons, and added section 11(5A) requiring financial and commercial expertise among appointed members. It inserted section 11A pending Order in Council. It also amended section 29 to allow statutes on elections and elected member transitional matters, and inserted sections 29(1)(u), (ua), (ub). It amended Schedule 1 clauses on terms (staff elected members up to 3 years, student elected members up to 2 years), re-election, conduct of elections, vacancies, casual vacancies, and chairperson. It added a new Division 5 of Part 8 (section 83) with transitional provisions allowing up to 6 months for first elections and temporary membership numbers.

The Education Legislation Amendment (Victorian Institute of Teaching, TAFE and Other Matters) Act 2018 (No. 31/2018) commenced on 15 October 2018. It amended Schedule 1 clause 1 to provide that government appointed and Council appointed members hold office for a term not exceeding 3 years (removing the previous 4-year term and the old subclauses). It also amended clause 8 on filling casual vacancies to allow up to 3-year terms for appointees and removed the obligation to fill casual vacancies within 3 months of expiry for appointed members. It added a new Division 6 of Part 8 (section 84) with transitional provision that the term limits apply only to members appointed after commencement.

The Act itself does not record any litigation history. The text of the Act includes no references to specific cases, judgments, or court proceedings. However, the Act contains several provisions that relate to the use of evidence and judicial notice, which would be relevant in any litigation arising under the Act. Section 34 provides that production of a verified copy of a university statute or university regulation under the common seal is sufficient evidence of its making and authenticity in all courts and tribunals and before all persons acting judicially. Section 62 provides that a certificate signed by the Vice-Chancellor or delegate as to the amount of a fine imposed under university statutes or regulations is prima facie evidence of the facts stated in the certificate. Section 7(3) requires courts to take judicial notice of the common seal of the University on a document and to presume it was duly affixed until the contrary is proved. The Act also provides for the resolution of internal disputes through the Council’s power to make statutes on discipline (section 29(1)(e)) and through elections (section 29(1)(u)). However, the Visitor has no powers to resolve disputes other than ceremonial functions (section 22(3)), which may affect the availability of a visitorial jurisdiction that existed historically. The transitional provisions in sections 69-70 and 81 ensure that decisions and matters are not affected by changes to the constitution of the University or Council, which could be relevant in litigation challenging the validity of pre-transition acts. Schedule 1 clause 16 provides a validation clause: an act or decision of the Council or a committee is not invalid merely because of a defect or irregularity in appointment or election of a member, or a vacancy in membership. Similarly, acts done by a person purporting to act as Chairperson, member, or committee member are not invalid merely because the occasion for appointment had not arisen, there was a defect in appointment, or the appointment had ceased to have effect. This clause would likely be invoked in any litigation challenging the validity of Council decisions on procedural grounds. There is no mention of any specific litigation in the explanatory details of the endnotes.

Several provisions in the Act contain traps for the unwary. The first is the limitation on Council membership in section 14: a person who is a member of any Australian parliament (Victorian, Commonwealth, or other State/Territory) must not be a Council member. Additionally, a person is ineligible if disqualified from managing corporations under Part 2D.6 of the Corporations Act or has been convicted of an indictable offence (including equivalent offences in other jurisdictions). This goes beyond criminal convictions and includes present disqualification. Failure to comply could result in the office becoming vacant (Schedule 1 clause 4(f)).

Another trap is the precise limitation on land disposal in section 37. The University must obtain prior Ministerial approval before alienating any land granted in fee simple under section 36(6)(a) (Crown land granted for University purposes), regardless of value or lease term, except for leasehold interests not exceeding 21 years (section 37(2)). For other land owned by the University, approval is required for any alienation of a fee simple interest if the consideration exceeds $5 million (or another amount fixed by the Minister by Gazette notice). Leases exceeding 21 years also require approval. Investment lands (acquired for investment purposes per Council opinion) are exempt from these two latter limits (section 38). The trap is that the exemption for investment lands does not apply to the Crown-granted land restriction.

Council members must be wary of conflict-of-interest duties under Schedule 1 clause 11. A member with an interest in a matter being considered by the Council must declare the interest as soon as practicable, either at a meeting or in writing to the Chancellor. Unless the Council otherwise directs, the member must not be present during deliberations on that matter and cannot vote. If the member does vote, the vote must be disallowed. Failure to declare properly could lead to removal proceedings under clause 3 for failing to comply with responsibilities.

Another subtle point: the Visitor (the Governor) has only ceremonial functions and no powers to resolve disputes (section 22). This removes the traditional visitorial jurisdiction that might otherwise be available to resolve internal University disputes. Anyone seeking to challenge a University decision internally cannot rely on the Visitor; they would need to use other mechanisms such as Council processes, statutory provisions, or external courts.

The Act provides that university statutes and regulations are not statutory rules or subordinate instruments (section 33). This means they are not subject to the usual tabling, disallowance, or publication requirements under the Subordinate Legislation Act 1994 or the Interpretation of Legislation Act 1984. However, section 31(2) requires the Council to ensure they are readily available to the public by whatever means the Council considers appropriate. A person affected by a statute or regulation may find it harder to locate if the Council’s chosen means are insufficient.

A further trap: fines imposed under statutes or regulations are civil debts, not criminal penalties (section 61). This means the University can recover them summarily as a debt, without the burden of proof beyond reasonable doubt. The certificate under section 62 is prima facie evidence, shifting the evidentiary burden to the person fined.

Finally, section 58(2) is a trap for the Council and the Minister: failure to comply with guidelines does not invalidate any commercial agreement or action taken. This means that even if the Council acts contrary to the guidelines, the contract remains valid. The Council must still ensure compliance (section 58(1)), but third parties cannot rely on non-compliance to escape contractual obligations.

To comply with the University of Melbourne Act 2009, the Council and the University must adopt a systematic approach to governance, financial management, and commercial activities.

Council composition and membership. The Council must ensure its membership complies with the fixed numbers set by Order in Council under section 63, or the transitional composition under section 11A pending an order. Government appointed members must equal or outnumber Council appointed members (section 11(5)). At least two appointed members must have financial expertise and one must have commercial expertise at senior level (section 11(5A)). No member should be a member of any Australian parliament (section 14(1)). Before appointment, the University should conduct checks against disqualifications under section 14(2): disqualification from managing corporations or indictable offence convictions. All officers (Chancellor, deputy chancellor, Vice-Chancellor) must be appointed in accordance with the Act and statutes (sections 24-26).

Council duties and responsibilities. The Council must act to fulfil its primary responsibilities under section 8(3): appoint and monitor the Vice-Chancellor, approve mission and strategic direction and annual budget, oversee management and performance, establish policy and procedural principles consistent with legal requirements and community expectations, approve control and accountability systems including for controlled entities, oversee risk assessment and management including for commercial activities, monitor academic activities, and approve significant commercial activities. Each member must comply with section 15 duties: act in good faith, honestly, for proper purposes, exercise reasonable care, and avoid conflicts. Conflict declarations must be made under Schedule 1 clause 11. The Council must ensure compliance with any guidelines made by the Minister under Part 6 (section 58(1)). The Council should maintain a register of interests and a conflict-of-interest policy.

Financial and property compliance. The University must apply all revenue solely for its objects (section 44). Borrowing requires Treasurer’s approval after consultation with the Minister (section 45). Investments must be authorised by the Council (section 46). Land disposals require careful assessment: prior Ministerial approval is needed for alienation of Crown-granted land (section 37(1)), for fee simple disposals of other land over $5 million (section 37(3)), and for leases over 21 years of non-investment land (section 37(4)). Investment lands (per Council opinion) are exempt from the latter two but not the first. The Council must arrange an audit of income and expenditure in accordance with guidelines (section 47). For controlled companies, annual audits by the Auditor-General are mandatory, and financial statements must be submitted within 3 months after balancing accounts (section 51).

Commercial activities and guidelines. The University must operate within any guidelines approved or made by the Minister under sections 53-55. The Council should submit draft guidelines for approval and comply with them. If the Minister has made interim guidelines, the University must follow them until final guidelines are approved. Section 52 allows the Minister to declare activities as university commercial activities or not. The University should maintain a register of commercial activities and conduct feasibility, due diligence, risk assessment, and risk management as required by guidelines. Reports to the Minister on commercial activities may be requested (section 59). The Minister may refer matters to the Auditor-General (section 60).

Statutes and regulations. The Council must make university statutes and regulations in accordance with Part 5. A statute must be in writing, sealed, and submitted to the Minister for approval (section 31). Statutes and regulations must be made readily available to the public (section 31(2)). They must not be inconsistent with guidelines (section 57). The Council must ensure that any elections for Council members are conducted in accordance with the Act and statutes (Schedule 1 clause 6).