University of New South Wales Act 1989

The Act directly constitutes and binds the University of New South Wales itself as a body corporate (s 5). Its governing body—the Council—is the primary decision-maker and is expressly made subject to the fiduciary duties in Schedule 2A. Individual Council members, whether official, elected, Council-appointed or Ministerially-appointed, are personally affected by qualification requirements (s 8C), term limits (s 9), disclosure obligations (Schedule 2A clause 5), removal powers (s 20G and s 11A) and protection from personal liability for good-faith acts (Schedule 1 clause 5).

The Vice-Chancellor, as principal executive officer (s 12(3)), the Chancellor and Deputy Chancellor (ss 10–11A), and the President or Deputy President of the Academic Board (as official Council members under s 8H) occupy defined statutory offices with functions, terms and removal risks prescribed by the Act.

Academic and non-academic staff are affected in multiple ways: they may be elected to the Council (s 8D), are entitled to representation on the governing body, fall within the University community for whom facilities may be provided (s 7), and are subject to the University’s disciplinary by-laws (s 27(1)(a)). Students likewise enjoy statutory rights to elect representatives, to be free of religious or political discrimination (s 23), to seek exemption from corporate membership on conscientious grounds (s 24), and to access grievance procedures that the Council must publish (s 15(1B)(i)).

Graduates are defined expansively (s 3(2)) to include recipients of awards from predecessor institutions and are eligible for election or appointment to the Council as graduate members (s 8E). They also benefit from the prohibition on religious or political tests for graduation or holding office (s 23).

The Minister (currently the Minister for Education or equivalent) holds appointment powers (s 8G), approval powers over certain land dealings (s 17(3)), the ability to request reports on commercial activities (s 20D), and the power to refer matters to the Auditor-General or Ombudsman (s 20E). The Minister may also remove Ministerially-appointed members (Schedule 1 clause 2(k)).

External parties who contract with the University, participate in joint ventures, lease University land, or sit on boards of controlled entities are indirectly affected by the commercial-guidelines regime (s 20B), the Register (s 20C), and the Council’s obligation to ensure controlled entities do not exceed the University’s own powers except with Ministerial permission (s 15A).

The Crown retains residual interests in land vested in it or a Minister that is used for University purposes (s 18), while the Governor, as Visitor, retains purely ceremonial functions (s 13). Oversight bodies—the Auditor-General, Ombudsman, and Parliament through annual reporting—receive statutory information flows (ss 16B, 20E and note to s 15).

Finally, the broader community benefits from the University’s statutory functions of public discourse, community services and knowledge dissemination, while taxpayers and donors are protected by the risk-management, accountability and conflict-of-interest controls that apply to all Council members and commercial activities.

Council members owe statutory duties codified in Schedule 2A that mirror but do not wholly replicate directors’ duties under the Corporations Act 2001. Clause 1 requires good-faith action in the best interests of the University as a whole and for a proper purpose. Clause 2 demands honesty and a reasonable degree of care and diligence. Clauses 3 and 4 prohibit improper use of position or information for personal or third-party advantage or to cause detriment to the University. Clause 5 contains a comprehensive conflict-of-interest regime: disclosure at the first meeting after the interest arises, recording in a public book, and mandatory withdrawal from deliberation and voting unless the Council determines otherwise. Associates are broadly defined to include family, business partners and friends where the relationship is known to the member.

The Council collectively holds the duty to maintain and comply with commercial Guidelines (s 20B(4)), keep the Register (s 20C), ensure controlled entities remain within the University’s powers (s 15A(1)), oversee risk and obtain independent audits where necessary (s 15(1B)(e)), approve significant commercial activities (s 15(1B)(g)), and report on Ombudsman and Auditor-General recommendations (s 16B).

The University itself has the right to exercise all functions in s 6, to sue and be sued in its corporate name, to hold property, to obtain financial accommodation, to invest, to form companies and joint ventures, and to delegate functions (subject to the no-sub-delegation rule in s 16(2) except where the Vice-Chancellor is expressly authorised). It enjoys stamp-duty relief for borrowings and investments (s 21A) and the ability to recover fees as debts (s 29).

Staff and students have the right to be free from religious or political discrimination in admission, graduation, office-holding or benefits (s 23) and the right to conscientious objection to corporate membership (s 24). Elected staff and student members have the right to be elected under by-laws that satisfy democratic standards (s 28(1B)–(1C)).

The Chancellor and Deputy Chancellor possess statutory functions (ss 10(3), 11(3)) and procedural rights during removal processes (s 11A). The Vice-Chancellor is entitled to the tenure and conditions set by the Council (s 12(2)) and may be delegated functions with sub-delegation rights where authorised (s 16(3)).

The Minister holds the right to appoint up to six external members (s 8G), to approve certain land transactions, to request commercial reports, and to make referrals for investigation. The Visitor’s rights are expressly limited to ceremonial functions (s 13).

All persons benefit from the good-faith immunity in Schedule 1 clause 5 and from the requirement that grievance procedures and appeal rights be publicly available (s 15(1B)(i)).

The Act is notably light on traditional criminal penalties; instead it relies on civil, administrative and internal enforcement mechanisms. Breach of a Council member’s duties under Schedule 2A can result in removal from office by a two-thirds majority resolution at a properly noticed meeting where the member has had an opportunity to reply (s 20G). The same two-thirds threshold and procedural safeguards apply to removal of the Chancellor or Deputy Chancellor by no-confidence motion (s 11A). These removal powers operate despite any contrary provision in s 20G(6) and do not require proof of a breach of duty in the case of Chancellor or Deputy Chancellor removal for best-interest reasons.

Failure to comply with the controlled-entity rule in s 15A(1) places the Council in breach of its statutory duty; the Minister may grant dispensations by written order (s 15A(2)) or regulations may exempt classes of activity (s 15A(3)). Non-compliance with the commercial Guidelines is a breach of the Council’s obligation under s 20B(4) and may trigger Ministerial requests for reports or referrals to the Auditor-General or Ombudsman (ss 20D–20E).

Land transactions effected without required Ministerial approval under s 17(3) are presumably void or unenforceable, although the Act does not expressly so state; the Council’s duty to obtain approval is clear. Leases of Crown land beyond 21 years without approval breach s 18(4)(a).

By-laws and rules made under ss 27 and 28 are enforceable as delegated legislation. Breach of disciplinary by-laws made under s 27(1)(a) can result in exclusion from courses or other sanctions prescribed internally. Fees and charges, including parking fines, are recoverable as debts in any court of competent jurisdiction (s 29).

The Act preserves the full operation of the Ombudsman Act 1974 and the audit and financial reporting obligations under the Government Sector Finance Act 2018 and Government Sector Audit Act 1983 (s 16A). Consequently, adverse audit findings or Ombudsman investigations can lead to reputational and funding consequences even if no direct statutory penalty is imposed by the University Act itself.

Failure to include Ombudsman or Auditor-General recommendation responses in the annual report breaches s 16B and may attract Parliamentary scrutiny. The 12-year consecutive service limit in s 9(3) is enforced by the Council’s obligation to maintain an appropriate balance of experienced and new members; a resolution to exceed the limit must be recorded.

No provision creates personal pecuniary penalties on Council members; the Act relies on removal, reputational pressure, and potential civil actions for breach of fiduciary duty (although the good-faith immunity in Schedule 1 clause 5 limits personal liability where actions are taken in good faith for the purposes of the Act).

The Act is expressly subject to the Interpretation Act 1987, which supplies definitions and construction rules (note to s 3(1)). It interacts heavily with the Government Sector Finance Act 2018, which governs annual reporting (note to s 15) and defines “controlled entity” for the purposes of s 15A. The Government Sector Audit Act 1983 is preserved in full (s 16A) and supplies the Auditor-General’s investigative powers referenced in s 20E.

The Corporations Act 2001 is incorporated by reference in the disqualification ground for Council membership (Schedule 1 clause 2(g)) and supplies the conceptual backdrop for the fiduciary duties in Schedule 2A, although those duties are tailored to the University context and do not import the full statutory regime for company directors.

Land dealings engage the Land Acquisition (Just Terms Compensation) Act 1991 and the Public Works Act 1912 (s 19), the Environmental Planning and Assessment Act 1979 (planning agreements under s 17(4)(c)), and the Duties Act 1997 (stamp-duty exemption in s 21A). Property vested in the Crown remains subject to Crown prerogatives except to the extent modified by ss 17–20.

Commercial activities must comply with competition and consumer law, foreign-investment rules (given the extraterritorial reach of s 6(4)), and intellectual-property statutes; the Act itself does not displace these but requires the commercial Guidelines to address governance, risk and audit (s 20B(3)).

The Ombudsman Act 1974 operates without limitation (s 16A) and can receive referrals of commercial activities as complaints (s 20E(b)). Anti-discrimination legislation sits alongside the statutory prohibition on religious or political tests in s 23.

By-laws and rules made under the Act constitute delegated legislation and must be consistent with the enabling Act and with superior statutes such as the Fair Work Act 2009 (Cth) in employment matters. The rule-making power expressly excludes certain core governance topics from subordinate authorities (s 28(1)), reserving them to Council-made election rules that must observe “sound and democratic electoral practices” (s 28(1B)).

Schedule 2 investment powers are constrained by the terms of any express trust (clause 4) and interact with general trustee legislation, although the University is not a traditional trustee. The Act’s good-faith immunity (Schedule 1 clause 5) operates as a statutory defence to common-law actions.

Recent amendments have aligned the legislation with contemporary public-sector financial management and regulatory reform statutes, ensuring that University commercialisation does not inadvertently breach broader accountability standards.

The most significant recent textual change appears in the 2024 amendments (2024 No 66, Sch 5). Section 16 was substituted to clarify that the Vice-Chancellor may sub-delegate only where the Council’s delegation expressly authorises it and only to the persons or bodies listed in s 16(1)(a)–(c). Section 17 was wholly replaced to modernise property powers: the new provision expressly lists permitted dealings, imposes Ministerial approval only for relevant land (defined as land acquired from the State at nominal value), creates exceptions for short-term functional leases, utilities leases up to 99 years, and certain planning agreements, and abolishes the rule against remoteness of vesting for agreed acquisition conditions. These changes reflect a policy desire to give the University greater commercial flexibility while retaining Ministerial oversight over core public assets.

Earlier amendments illustrate the Act’s evolution. The 2001 amendments (2001 No 101) substituted s 6 to expand the object and functions, introduced the commercial-functions definition, added Part 4 Division 3 on commercial activities, inserted controlled-entity controls (s 15A), and strengthened Council oversight obligations. The 2004 amendments (2004 No 115) introduced Part 4A and Schedule 2A fiduciary duties, revised Council membership and term limits (s 9), and added conflict-of-interest removal mechanisms. The 2012 regulation (2012 (141)) overhauled Council composition to implement the Universities Governing Bodies Act 2011 template, inserting ss 8A–8H and adjusting Schedule 1.

The 2014 amendments (2014 No 43) refined commercial Guidelines, risk-management language, and Ministerial appointment restrictions. The 2017 and 2018 amendments aligned financial reporting with the new Government Sector Finance Act 2018 and expanded risk-management language to include financial-adjustment transactions (s 15(1B)(e1)).

These changes were driven by three policy imperatives: (1) enabling universities to commercialise research and generate non-government revenue in an era of constrained public funding; (2) applying contemporary corporate-governance and risk-management standards to governing bodies following national reviews; and (3) ensuring accountability and transparency in an environment of growing controlled entities and overseas activities. The net effect is a statute that now reads as a hybrid of establishment legislation and modern public-entity governance law.

Because the Act is framework legislation that delegates most operational detail to by-laws and Council resolutions, reported case law directly construing its provisions is sparse. The text itself records no specific judicial decisions, and the instruction is to ground every claim in the source text; therefore analysis must rest on the statutory language and the controversies it implicitly addresses.

The limitation of the Visitor’s jurisdiction to ceremonial functions only (s 13(2)), inserted in 1994, was a direct legislative response to earlier disputes in which visitors of Australian universities had exercised quasi-judicial powers over internal grievances. The section expressly extinguishes jurisdiction over “the resolution of disputes or any other matter concerning the affairs of the University” except ceremonial matters. Subsection (2) applies to matters arising before its commencement, but grandfathered completed Visitor inquiries (Schedule 3 clause 8). This change removed a historic source of parallel dispute-resolution machinery and channelled grievances into the University’s own published procedures (s 15(1B)(i)) or external oversight bodies.

The introduction of fiduciary duties in 2004 and the two-thirds removal mechanism (s 20G) responded to national concerns about governing-body accountability. The legislation deliberately excludes any need to prove breach of duty when removing the Chancellor or Deputy Chancellor under s 11A, reflecting a policy view that loss of confidence alone can justify removal. The detailed conflict-of-interest rules in Schedule 2A clause 5, including the broad definition of “associate” and the public register of disclosures, were designed to forestall real or apparent conflicts in commercialisation decisions.

Council size and composition rules (s 8B) have been a recurring policy battleground. The requirement that a majority be external persons, that no category form a majority, and that financial and commercial expertise be represented (s 8C) reflect recommendations from governance reviews that criticised “insider-dominated” university councils. The 12-year consecutive-service cap (s 9(3)) and the obligation to balance experience and renewal address concerns about entrenchment.

Commercial-activity provisions (Division 3) were inserted after controversies in the late 1990s and early 2000s concerning university spin-out companies, joint ventures and perceived conflicts between academic mission and profit-seeking. The mandatory Guidelines, Register, Ministerial reporting and referral powers constitute a statutory safeguard intended to prevent repetition of past controversies without prohibiting commercialisation.

No provision in the Act has been held unconstitutional; the University’s corporate status and powers are long-settled. The interaction between the Act and Commonwealth corporations law remains live in theory—particularly whether Council members could be characterised as “officers” for certain purposes—but the Act’s internal removal and duty regime is designed to operate independently.

Most practitioners assume that once land is vested in the University it may be dealt with freely; s 17(3)–(4) reveals that “relevant land” (any land acquired from the State at nominal or less than market value) remains subject to Ministerial approval for sale, mortgage, charge or long lease, with only narrowly drafted exceptions. The definition is not limited to land acquired after the 2024 amendments; the new subsections apply to previously acquired land (Schedule 3 clause 16).

The commercial-functions power in s 6(3)(a) is deceptively broad, yet the controlled-entity rule in s 15A(1) prohibits any controlled entity from doing anything the University itself could not do unless the Minister has granted a specific written permission or a regulation exempts the class. Many subsidiaries established before 2001 were grandfathered only to the extent that their activities remained within the then-current powers; post-amendment activities must be checked against the current s 6.

Council members frequently overlook that the 12-year consecutive-service limit in s 9(3) is measured in calendar years of office, not terms, and that even a one-day gap does not reset the clock if the service is consecutive. The Council may resolve to exceed the limit, but the resolution must be recorded and the member’s history taken into account in the balance-of-experience obligation.

The duty to “ensure” that governing bodies of controlled entities possess independent expertise, adopt governance principles, maintain measurable performance targets and report via an established protocol (s 15A(5A)) is expressed as a Council obligation “as far as is reasonably practicable”. The qualifier invites judicial scrutiny of process rather than outcome; failure to document reasonable steps could itself breach the care-and-diligence duty in Schedule 2A clause 2.

Election rules made under s 28(1A) must be “consistent with sound and democratic electoral practices” (s 28(1B)) and published promptly. A by-law or rule that effectively disenfranchises a class of eligible voters (for example by setting impracticable nomination deadlines) would be vulnerable to internal challenge or Ministerial intervention even though the Act contains no explicit invalidity clause.

The good-faith immunity in Schedule 1 clause 5 protects only acts or omissions “for the purpose of executing this or any other Act”. Commercial decisions motivated predominantly by personal or third-party gain could fall outside the protection, exposing members to the very fiduciary claims the Act seeks to channel into the internal removal process.

Finally, the Act’s definition of “graduate” (s 3(2)) includes recipients of awards from any predecessor institution “or otherwise” amalgamated under the Higher Education (Amalgamation) Act 1989. This can unexpectedly qualify long-forgotten diploma holders for election to Council or for other graduate privileges.

Compliance begins with the Council’s adoption and regular review of a statement of primary responsibilities (s 15(1B)(k)) and a program of induction and professional development for all members (s 15(1B)(l)). Each member must receive and acknowledge the Schedule 2A duties; a formal register of disclosures should be maintained and updated at every meeting.

The commercial Guidelines required by s 20B must be kept current by Council resolution, published internally, and expressly address feasibility, due diligence, governance structures, risk assessment, delegation limits and conflict protocols. Every proposed University commercial activity must be assessed against these Guidelines before commencement, and details entered on the Register (s 20C). Significant activities require formal Council approval (s 15(1B)(g)).

For property transactions, a two-stage analysis is required: first, determine whether the land is “relevant land”; if so, Ministerial approval must be sought unless the dealing falls within one of the three express exceptions in s 17(4). All acquisitions of Crown land should be documented so that the consideration paid is clearly recorded for future classification.

Controlled entities require annual mapping against the Government Sector Finance Act 2018 definition. Governing bodies must be constituted with the expertise, independence and strategy documentation required by s 15A(5A), and a written protocol governing reporting to the Council must exist. Any activity a controlled entity wishes to undertake that the University itself could not must obtain specific Ministerial permission.

Council composition must be audited against ss 8B–8H at least annually. The total number of members is fixed by two-thirds resolution, the majority-external rule observed, and no category permitted to dominate. Election rules must be made by the Council, published promptly, and comply with democratic standards. Terms of office, including the 12-year cap, should be tracked in a central register.

Annual reports must include responses to all Ombudsman and Auditor-General recommendations (s 16B) and satisfy the broader requirements of the Government Sector Finance Act 2018. Risk registers should expressly address both University-controlled and non-controlled entities in which the University holds an interest.

By-laws and rules should be reviewed for consistency with the Act; any rule that touches on election procedures, Council appointments or the excluded matters listed in s 28(1) must be made by the Council itself. All delegations, including those to the Vice-Chancellor, must be in writing and, where sub-delegation is contemplated, must expressly authorise it.

Legal sign-off on all major commercial contracts should confirm that the counterparty has been advised of the University’s statutory constraints and that the transaction sits inside the object and functions in s 6. Insurance and indemnity arrangements for Council members should be reviewed against the statutory immunity in Schedule 1 clause 5 so that cover is available for acts outside the good-faith execution of the Act.

A compliance calendar should capture: annual Council self-review (s 15(1B)(j)), updating of commercial Guidelines and Register, financial and risk reports to Council, Ministerial notifications required under s 8B(8), and renewal of expiring land leases before they trigger approval thresholds. Regular external legal health-checks against the Act’s ever-evolving amendment history remain advisable given the volume of changes since 1989.