University of Wollongong Act 1989

Several defined terms are central to the Act’s operation. University means the University of Wollongong established by the Act (s 3(1)). Council means the Council of the University (s 3(1)). Commercial functions of the University means the commercial functions described in s 6(3)(a), that is, the commercial exploitation or development of any facility, resource or property of the University for its benefit (s 3(1)). Graduate is defined in s 3(2) as a person who is the recipient of a degree or diploma or other award or certificate prescribed by the by-laws, conferred or awarded by the University, by or on behalf of any former institution that has become part of the University, or by any predecessor of such an institution. The Act also defines terms specific to the Council membership in Division 1 of Part 3 (s 8). Appointed member means a Council appointed member or a Ministerially appointed member (s 8). Elected member includes elected academic staff, non-academic staff and student members (s 8D). External person means a person other than a member of the academic or non-academic staff or an undergraduate or graduate student of the University (s 8). Graduate member is a member who is an external person and a graduate of the University (s 8E). Official members are the Chancellor, the Vice-Chancellor, and the person holding the office of presiding member of the Academic Senate (or deputy if the presiding member is the Vice-Chancellor) (s 8H). Ministerially appointed member means a member appointed by the Minister under s 8G (s 8). Council appointed member means a member appointed by the Council under s 8F (s 8). The constitution rules are rules made by the Council prescribing the number of members in each category (other than official members) (s 8B(4)). The Act also defines University commercial activity in s 21A as any activity engaged in by or on behalf of the University in the exercise of commercial functions, plus any other activity comprising promotion of or participation in partnerships, trusts, companies or joint ventures that is declared by the Guidelines to be a University commercial activity. Controlled entity is defined by reference to the Government Sector Finance Act 2018 (s 16A(6)). Relevant land means land acquired by the University from the State at nominal or less than market value (s 18(6)). The Act also contains standard interpretive provisions: a reference to a function includes a reference to a power, authority and duty (s 3(3)). Notes included in the Act do not form part of the Act (s 3(4)).

The Act directly affects the University as a body corporate, and all persons who are part of its constitution under s 4: the Council, the academic and non-academic staff, the graduates and the students. The Council members are the primary subjects of the governance framework: they are subject to statutory duties of care, diligence, good faith, proper purpose, and prohibitions on improper use of position and information (Schedule 2A). The Act imposes specific obligations on Council members regarding disclosure of material interests (Schedule 2A clause 5) and removal from office for breach of duty (s 21G). The Chancellor, Deputy Chancellors and Vice-Chancellor are specific office holders whose appointment, term and functions are regulated (ss 10-12). The Vice-Chancellor is the principal executive officer (s 12(3)). The Academic Senate is established by the Act and its constitution is to be prescribed by by-laws (s 15). The Governor is the Visitor but has ceremonial functions only, with no dispute resolution jurisdiction (s 13). The Minister for the time being administering the Act has significant powers: approving the sale, mortgage, charge or lease of relevant land (s 18(3)), appointing up to six Ministerially appointed members to the Council (s 8G), acquiring land on behalf of the University (s 20), receiving reports on commercial activities (s 21D), and referring matters to the Auditor-General or Ombudsman (s 21E). The Ombudsman and the Auditor-General may investigate the University and the Council under their respective Acts, and the Act preserves those powers (s 17A). The Council must include in its annual report action taken to implement any recommendation from the Ombudsman or Auditor-General (s 17B). The Act also affects controlled entities (within the meaning of the Government Sector Finance Act 2018) because the Council must ensure they do not exercise functions the University is not authorised to exercise, unless permitted by the Minister (s 16A(1)-(2)). The Council is also required to ensure proper governance of controlled entities, including expertise, independent members, governance principles, strategy and reporting protocols (s 16A(5A)). Students are affected by admission, enrolment, fees and discipline provisions under by-laws (s 28(1)(m)-(p)). Staff are affected by appointment, tenure and dismissal provisions (s 28(1)(l)). The public is affected by the requirement that grievance procedures and appeal rights be published in a form readily accessible (s 16(1B)(i)).

The Act imposes a range of duties on Council members. Section 21F states that members have the duties set out in Schedule 2A. Schedule 2A contains five duties: (1) a duty to act in good faith in the best interests of the University as a whole and for a proper purpose (clause 1); (2) a duty to act honestly and exercise a reasonable degree of care and diligence (clause 2); (3) a duty not to make improper use of position to gain an advantage for the member or another person or to cause detriment to the University (clause 3); (4) a duty not to make improper use of information acquired because of the position for those same purposes (clause 4); and (5) a duty to disclose material interests that appear to raise a conflict with proper performance of duties (clause 5). The disclosure duty requires the member to disclose the nature of the interest as soon as possible after the relevant facts come to the member’s knowledge (clause 5(1)). The disclosure must be recorded in a book open for public inspection on payment of a reasonable fee (clause 5(3)). After disclosure, the member must not be present during deliberation or take part in any decision on the matter unless the Council otherwise determines (clause 5(4)). The Council may remove a member for breach of duty only in accordance with s 21G, which requires a two-thirds majority at a meeting with due notice and a reasonable opportunity for the member to reply (s 21G(2)-(5)). Removal does not require establishing any breach of duty for the Chancellor or Deputy Chancellor under the separate removal power in s 11A. The Council has extensive rights and functions under s 16. It acts for and on behalf of the University, has control and management of its affairs and concerns, and may act in all matters concerning the University in whatever manner appears best calculated to promote its object and interests (s 16(1A)). Specific oversight duties include monitoring Vice-Chancellor performance, overseeing University performance and academic activities, approving mission, strategic direction, budget and business plan, overseeing risk management, approving and monitoring systems of control and accountability, approving significant University commercial activities, establishing policies, ensuring grievance procedures are published, reviewing its own performance, adopting a statement of primary responsibilities, and providing induction and development programs for members (s 16(1B)(a)-(l)). The Council has specific powers, including providing courses, conferring degrees, appointing and terminating staff, obtaining financial accommodation, investing funds, promoting or participating in partnerships, trusts, companies and joint ventures, establishing branches and colleges, making loans and grants to students, and imposing fees, charges and fines (s 16(1)(a)-(j)). The Council also has powers relating to property: control and management of land and other property vested in the University, power to acquire land and other property, grant easements and covenants, and dispose of or deal with land and other property, subject to Ministerial approval for sale, mortgage, charge or lease of relevant land (s 18). The Council may lease certain land without Ministerial approval if the term is no more than 21 years and consistent with the object and functions, or no more than 99 years for utilities infrastructure, or enter into planning agreements without dedicating land free of cost (s 18(4)). The Council may delegate its functions (except the power of delegation) to any member, committee, authority or officer, or other person or body prescribed by by-laws (s 17). The Vice-Chancellor may sub-delegate if authorised (s 17(2)). The Council has power to make by-laws (subject to Governor approval) and to empower others to make rules (ss 28-29). The University has a right to recover charges, fees and other money due as a debt in any court of competent jurisdiction (s 30). Individuals have a right not to be denied admission, office, graduation or benefits because of religious or political affiliations, views or beliefs (s 24). Students, graduates and staff have the right to be exempted on grounds of conscience from membership of the body corporate of the University (s 25).

The Act provides several enforcement mechanisms and consequences for non-compliance. The primary enforcement mechanism for Council members is removal from office for breach of a duty set out in Schedule 2A. Section 21G sets out the procedure: removal may be effected only at a meeting of which due notice (including notice of the motion) was given, only if supported by at least two-thirds of the total number of members for the time being, and only after the member concerned has been given a reasonable opportunity to reply (s 21G(2)-(4)). If the member does not attend, a reasonable opportunity is taken to have been given if notice was duly given (s 21G(5)). No member may be removed for breach of duty except under s 21G (s 21G(6)). A separate removal power exists for the Chancellor or Deputy Chancellor: the Council may remove them by a no confidence motion passed at two consecutive ordinary meetings, supported by at least two-thirds of the total number of members, if considered in the best interests of the University (s 11A(1)-(2)). This removal does not require establishing any breach of duty and applies despite s 21G(6) (s 11A(3)). Vacation of office under Schedule 1 clause 2 includes automatic vacation upon conviction in New South Wales of an offence punishable by imprisonment for 12 months or more, or conviction elsewhere of an equivalent offence, and also upon becoming disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001 (Cth). The Minister may remove a Ministerially appointed member (Schedule 1 clause 2(k)). The Council may remove a Council appointed member (Schedule 1 clause 2(l)). For elected members, ceasing to be qualified for election triggers vacation (Schedule 1 clause 2(j)). Absence from three consecutive meetings without excuse within six weeks also vacates office (Schedule 1 clause 2(i)). The Act does not create criminal penalties directly; enforcement of financial obligations is through debt recovery: any charge, fee or money due to the University under the Act may be recovered as a debt in any court of competent jurisdiction (s 30). The Minister may refer a University commercial activity to the Auditor-General for investigation and report, or as a complaint to the Ombudsman under the Ombudsman Act 1974 (s 21E). The Council must include in its annual report any action taken to implement recommendations from the Ombudsman or Auditor-General (s 17B). The Act does not impose fines in the principal text, but by-laws may impose fines for parking and traffic infringements and other matters (s 28(1)(n), (p)). A contravention of the disclosure of material interests clause does not invalidate any decision of the Council (Schedule 2A clause 5(6)). The Council must comply with the Guidelines for commercial activities and maintain a Register; non-compliance could expose the Council and its members to scrutiny by the Minister, Ombudsman or Auditor-General, and potentially to removal for breach of duty if the breach amounts to a failure of care and diligence.

Section 17A expressly provides that nothing in the Act limits or otherwise affects the operation of the Ombudsman Act 1974, the Government Sector Finance Act 2018, or the Government Sector Audit Act 1983 to or in respect of the University or the Council. This means those Acts apply with full force alongside the University of Wollongong Act. The Government Sector Finance Act 2018 regulates annual reporting, controlled entities, and financial management; the Act defines “controlled entity” by reference to that Act (s 16A(6)). The Government Sector Audit Act 1983 provides for audit of the University. The Ombudsman Act 1974 allows investigation of complaints; s 21E specifically allows the Minister to refer a University commercial activity as a complaint to the Ombudsman. The Land Acquisition (Just Terms Compensation) Act 1991 governs compulsory acquisition of land by the Minister for the University’s purposes (s 20(1)). The Public Works Act 1912 applies: any acquisition under the Act is taken to be for an authorised work and the Minister is the Constructing Authority (s 20(3)). Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply to works constructed under s 20 (s 20(4)). The Environmental Planning and Assessment Act 1979 is relevant: the Council may enter into a planning agreement under s 7.4 of that Act without requiring Ministerial approval if the agreement does not require the University to dedicate relevant land free of cost (s 18(4)(c)). The Stamp Duties Act 1920: conveyances, transfers or instruments for the purpose of s 21 (grant or transfer of certain land to the University) are not liable to stamp duty and may be registered without fee (s 21(2)). The Duties Act 1997: the University and Council are exempt from duty on things done for borrowing or investment of funds unless the Treasurer otherwise directs (s 22A(1)). The Treasurer may also direct other persons are exempt (s 22A(2)). The Corporations Act 2001 (Cth) is relevant: a Council member becomes disqualified from managing a corporation under Part 2D.6 of that Act, triggering vacation of office (Schedule 1 clause 2(g)). The Interpretation Act 1987 applies to the interpretation of the Act, and the note to s 3(1) confirms that. The Act does not limit the operation of the Universities Governing Bodies Act 2011; indeed Schedule 3 clause 14 deals with adoption of standard governing body provisions under that Act following a governing body resolution by the Council on 2 December 2011. The Act also preserves the validity of prior investments (Schedule 3 clause 6) and existing by-laws (Schedule 3 clause 8). The rule against remoteness of vesting does not apply to a condition of acquisition of property to which the University has agreed (s 18(5)).

The Act has been amended numerous times. The marginal notes indicate amendments by the following Acts and regulations: 1994 No 16 (University Legislation (Amendment) Act 1994) - this amended s 13 (Visitor) and other provisions, and substituted s 29 (Rules) and introduced savings provisions in Schedule 3. 1996 No 24 - made an amendment to s 16. 1999 No 94 - amended Schedule 1. 2001 No 101 (Universities Legislation Amendment (Financial and Other Powers) Act 2001) - substantially amended s 3, substituted s 6 (object and functions), substituted s 7, inserted s 16A (controlled entities), ss 21A-21E (commercial activities), s 17A, s 17B, s 22A (stamp duty exemption), and amended Schedule 1 and Schedule 2. 2004 No 115 (University Legislation Amendment Act 2004) - substituted s 9 (term of office), inserted Part 4A (ss 21F, 21G) and Schedule 2A (duties of Council members), and made further amendments to ss 8, 16, 16A, 28, 29 and Schedules. 2005 No 64 and No 98 - minor amendments to s 9 and Schedule 1. 2008 No 23, 2010 No 19 - amended Schedule 2A. 2011 No 51 (Universities Governing Bodies Act 2011) - inserted s 11A (removal of Chancellor or Deputy Chancellor), amended ss 10, 11 and Schedule 1. 2012 (Act No 134) - inserted new Division 1 of Part 3 (ss 8A-8H) and substituted s 9, and amended s 29 and Schedule 1 and Schedule 3. 2013 No 47 - amended s 27 (seal) and Schedule 2A. 2014 No 43 (Universities Legislation Amendment (Regulatory Reforms) Act 2014) - amended s 4 (repealed paragraph (b) relating to convocation), s 6, s 16, s 17, s 18, s 19, s 21A, s 21B, s 25, s 29, Schedule 2, Schedule 3. 2017 No 22 (Statute Law (Miscellaneous Provisions) Act 2017) - substituted s 11 (Deputy Chancellors) and amended s 11A, s 16, s 18, s 28, Schedule 1, Schedule 3. 2017 No 23 - amended s 18. 2018 No 70 - amended s 16, s 16A, s 17A. 2024 No 66 - substituted s 18 (powers of Council relating to University property) in its entirety.

The Act itself does not contain references to specific litigation or court cases. However, several provisions indicate the legislature’s awareness of potential legal disputes and provide mechanisms to address them without recourse to litigation, or to validate past acts. Section 13(2) expressly removes the Visitor’s functions and jurisdiction with respect to the resolution of disputes or any other matter concerning the affairs of the University (other than ceremonial functions). This was inserted by the University Legislation (Amendment) Act 1994. Schedule 3 clause 9 provides a transitional provision for that amendment: it extends to disputes and other matters arising before commencement of the clause, but if an inquiry by or at the direction of the Visitor had commenced or been completed before commencement, that dispute is to be dealt with under the old regime as if the 1994 amendment had not been enacted. This suggests the Visitor previously had a dispute resolution role, and the Act was amended to remove it. There is no other direct textual evidence of litigation. The validation provision in Schedule 3 clause 12 validates any act or omission occurring before the substitution of s 6 by the 2001 Act that would have been valid had the substituted section been in force from the commencement - to the extent of any invalidity, it is taken to be and always to have been valid. This implies there was some concern about the legal validity of acts done under the earlier s 6, and the amendment retroactively validates them. The Schedule 2A duties of Council members (inserted in 2004) mirror common law fiduciary duties and statutory duties under corporations law, which may be enforceable by the University in a court, but the Act provides an internal removal mechanism as an alternative to litigation. The Act does not create a private right of action for breach of duty; enforcement is through the removal power and possibly through general law. The University may recover debts in court (s 30). The Act also provides for referral to the Ombudsman or Auditor-General for investigation of commercial activities (s 21E), which may lead to reports but not necessarily litigation.

Several provisions contain traps for the unwary. First, the Visitor (the Governor) has ceremonial functions only. Section 13(2) explicitly removes any functions or jurisdiction with respect to the resolution of disputes or any other matter concerning the affairs of the University (other than ceremonial functions). This means the traditional visitorial jurisdiction that existed at common law for universities is abolished by this Act. Anyone seeking to challenge a decision of the University cannot petition the Governor as Visitor. Second, the note in s 3(4) states that notes included in the Act do not form part of the Act. Therefore, the note under s 8B(6) that the Chancellor may be counted as an external person is not binding law; however, it may be persuasive. Third, section 25 entitles a student, graduate or staff member to be exempted by the Council on grounds of conscience from membership of the body corporate of the University. This is a rarely invoked right but may be important for individuals whose conscientious beliefs prevent them from holding such membership. Fourth, section 24 prohibits denying admission, office, graduation or benefits based on religious or political affiliations, views or beliefs. This is a strict non-discrimination provision that could expose the University to legal challenge if any policy or action contravenes it. Fifth, section 18(3) requires Ministerial approval to sell, mortgage, charge or lease relevant land (land acquired from the State at nominal or less than market value). However, the exceptions in s 18(4) are specific: leases up to 21 years consistent with object and functions, leases up to 99 years for utilities infrastructure, and certain planning agreements. Any transaction falling outside these exceptions needs Ministerial approval. Sixth, the Council’s power to remove a member for breach of duty under s 21G requires a two-thirds majority of the total number of members for the time being, not just those present and voting (s 21G(3)). This is a high threshold. Also, s 21G(6) provides that a member may not be removed for breach of duty except under that section, meaning the Council cannot rely on general powers to remove. Seventh, the disclosure of material interests requirement applies to committee members as well as Council members (Schedule 2A clause 5(8)). The definition of “associate” in clause 5(10) is broad and includes friends and business partners. A Council member must be careful to disclose any interest that may result in a detriment or benefit to themselves or an associate. Eighth, the Act does not specify consequences for failure to comply with the commercial activities Guidelines; compliance is required by s 21B(4), but the only explicit enforcement mechanism is referral to the Ombudsman or Auditor-General (s 21E) and inclusion in annual reports (s 17B). Ninth, the constitution rules for the Council (made under s 8B) must ensure that the majority of members are external persons (s 8B(6)) and that no one category constitutes a majority (s 8B(7)). Violating these composition requirements could render Council decisions challengeable. Tenth, the prohibition on a person being appointed or elected to serve more than 12 consecutive years unless the Council resolves otherwise (s 9(3)) is a hard cap that could catch long-serving members.

Compliance with the Act requires action at multiple levels. The Council must ensure its own composition complies with ss 8A-8H and Schedule 1. It must determine the total number of members by two-thirds resolution (s 8B(2)), make constitution rules prescribing the numbers in each category (s 8B(4)-(5)), and ensure that at least two members have financial expertise and at least one has commercial expertise (s 8C(1)). All appointed members must have relevant expertise and appreciation of the University’s object, values, functions and activities (s 8C(2)). The Council must give the Minister written notice of any resolution on its size within seven days (s 8B(8)). The Council must make by-laws for election and appointment procedures, term limits, and other matters (ss 8D, 8E, 8F, 9(1) and s 28). The Council must adopt a statement of its primary responsibilities (s 16(1B)(k)) and provide an induction and development program for members (s 16(1B)(l)). It must regularly review its own performance (s 16(1B)(j)). The Council must ensure that controlled entities do not exercise functions the University cannot exercise, unless permitted by the Minister (s 16A(1)-(2)), and must ensure proper governance of those entities including expertise, independent members, governance principles, strategy and reporting protocols (s 16A(5A)). The Council must ensure that any delegation of functions is made by resolution and that sub-delegation by the Vice-Chancellor is authorised in the instrument of delegation (s 17). In relation to property, the Council must manage and control land and other property, and must obtain Ministerial approval before selling, mortgaging, charging or leasing relevant land unless an exception applies (s 18). For commercial activities, the Council must determine and maintain Guidelines by resolution (s 21B(1)), comply with those Guidelines (s 21B(4)), maintain a Register of University commercial activities with specified details (s 21C(1)), and provide copies to the Minister on request (s 21C(3)). The Council must report to the Minister on commercial activities when requested (s 21D). The Council must include in its annual report any action taken to implement recommendations from the Ombudsman or Auditor-General (s 17B). It must publish grievance procedures and information about appeal or review rights in a form readily accessible to the public (s 16(1B)(i)). The Council must make election rules that are consistent with sound and democratic electoral practices and ensure they are made readily available to the public (s 29(1A)-(1C)). Individual Council members must comply with the duties in Schedule 2A: act in good faith and for proper purpose, exercise reasonable care and diligence, not improperly use position or information, and disclose material interests. Members must avoid participating in deliberations and decisions on matters where they have a material interest unless the Council determines otherwise (Schedule 2A clause 5). The Council must keep a book recording disclosures of interests, open for public inspection on payment of a reasonable fee (Schedule 2A clause 5(3)). The Chancellor and Deputy Chancellors must be elected in accordance with the Act (ss 10, 11). The Vice-Chancellor must be appointed by the Council (s 12). The Academic Senate must be constituted and function as prescribed by by-laws (s 15). The Council may make by-laws (subject to Governor approval) for a wide range of matters including management, discipline, elections, fees, courses, degrees, and other matters (s 28). The Council may also make rules (ss 29). The seal of the University must be kept as directed by the Council and affixed only pursuant to a resolution (s 27). The financial year is either 1 January to 31 December or a period prescribed by by-laws (s 23). The University must comply with the annual reporting requirements of the Government Sector Finance Act 2018 (note to s 16). Overall, compliance is a matter of robust governance, timely decision-making, proper documentation, and adherence to the statutory duties and procedural requirements set out in the Act.