1. Operating Framework For Council
Universities in Australia operate in an environment subject to regulation by both State and Commonwealth governments. The main sources for this, in the case of Flinders University are:
- Flinders University of South Australia Act 1966 (SA);
- Tertiary Education Quality and Standards Agency (TEQSA) Act 2011 (Cth).
The Voluntary Code of Best Practice for the Governance of Australian Universities (2011) at Appendix 13 is also of relevance, having been adopted by both Universities Australia and the University Chancellors’ Council.
1.1 Statutory Basis
The Council has its statutory basis in the Flinders University of South Australia Act 1966 which appears in Appendix 1. The Council has the powers, authorities, duties and functions conferred on it under the Act. The membership of Council is also defined in the Act.
The Tertiary Education Quality and Standards Agency (TEQSA) Act 2011 establishes TEQSA as the national regulator and the national regulatory and quality assurance environment for Australian higher education.
TEQSA takes a standards-based risk management approach to regulation, constrained by legislated operating principles of regulatory necessity and proportionate regulation reflecting risk.
The standards framework includes: Provider standards (minimum standards to ensure reputable, accountable financially sound, well-governed, academic quality and integrity, responsible to students, etc); Qualifications standards (compliance with prescribed award levels and issuance and pathways policies); and standards covering Teaching and Learning, Research and Information. The standards may be seen as checklists of requirements that the University must satisfy to maintain its registration.
The implications of the standards framework for governance are meeting the challenge of ensuring that the University’s governance structures are such that the TEQSA standards are in the foreground, that practices of self-regulation really do self-regulate the range of things in the standards and that the University can demonstrate compliance and achievement of quality outcomes.
2. Powers and Functions
The Act defines the powers and responsibilities of the Council in Section 5, paragraphs (1) and (2) as follows:
5(1) The Council has the powers, authorities, duties and functions conferred and imposed on the Council by or under this Act.
5(2) The Council is the governing body of the University and has as its primary responsibilities -
(a) appointing the Vice-Chancellor as the chief executive officer of the University, and monitoring his or her performance;
(b) approving the mission and strategic direction of the University, as well as the annual budget and business plan;
(c) overseeing and reviewing the management of the University and its performance;
(d) establishing policy and procedural principles, consistent with legal requirements and community expectations;
(e) approving and monitoring systems of control and accountability, including general overview of any entities controlled by the University (within the meaning of section 50AA of the Corporations Act 2001);
(f) overseeing and monitoring the assessment and management of risk across the University, including commercial undertakings;
(g) overseeing and monitoring academic activities of the University;
(h) approving significant commercial activities of the University.
The Act identifies the Council's capacity to delegate its powers in Section 19A, as follows:
(1) The Council may delegate any of its powers under this Act (except this power of delegation) to any officer, employee, board or committee of the University.
(2) The delegation of powers under this section does not derogate from the power of the Council itself to act in any matter.
Council has delegated authority to its standing committees on a number of matters, in particular to the Academic Senate and Finance and Investment Committee. Council has also delegated authority on some matters to the Vice-Chancellor and senior staff.
2.3 Power to make statutes, regulations and by-laws
Under Section 20(1) of the Act, Council has "full power to make, alter and repeal any statutes and regulations" concerning a broad range of purposes, including
- the discipline of the University;
- staff appointments and conditions of employment;
- teaching arrangements;
- establishment of academic awards;
- affiliation with external bodies; and
- constitution of boards and committees.
Section 20(3) provides that all statutes and regulations shall be submitted to the Governor to be allowed.
Section 20(3a) provides that on being allowed by the Governor, a statute or regulation is binding on the whole body of the University.
Section 20(4) empowers Council to make by-laws for a wide range of purposes. By-laws must be submitted to the Governor for confirmation, published in the Gazette and laid before each House of Parliament. By laws made pursuant to the Act form Appendix 2.
2.4 Corporate Powers
The powers which the University may exercise are set out in sections 3(3) to 3(6) of the University Act.
Section 3(3) provides that "subject to subsection (5), the University is a body corporate invested with full juristic capacity and unfettered discretion, subject to the laws of this State, to conduct its affairs in the manner it thinks fit."
Section 3(4) states that "the University may exercise its powers within or outside the State (including outside Australia)."
Section 3(5) provides that "the University must not alienate (except by way of lease for a term not exceeding 21 years), mortgage or charge land vested in or conveyed to the University on trust except with, and in accordance with any terms or conditions of, an approval given by the Governor."
Section 3(6) states that "to avoid doubt, subsection (5) does not confer any power to alienate land contrary to the terms of a trust relating to the land."
If, in the exercise of its powers, the University commits or threatens to commit a civil wrong such as a breach of contract, or acts in excess or abuse of its powers, it may be sued privately for damages or other appropriate relief.
2.5 Annual Report
Council is required to submit to the Governor an annual report on the proceedings of the University. The report must include an audited account of University income and expenditure for the period covered by the report.
3. Composition Of Council
The composition of Council is defined in Section 5 (3) of the Act:
- the Chancellor ex officio;
- the Vice-Chancellor ex officio;
- the presiding member of the Academic Senate ex officio or if the presiding officer is the Vice-Chancellor, an academic staff member of the Academic Senate who is not a student of the University, elected by the Academic Senate;
- ten persons appointed by the Council on the recommendation of a selection committee which consists of the Chancellor and six other persons appointed by the Chancellor in accordance with guidelines determined by the Council;
(term of office: 2 or 4 years determined on the recommendation of the selection committee)
if the Council so determines, one person co-opted and appointed by the Council;
(term of office: 2 or 4 years determined by Council)
- two members of the academic staff elected by the academic staff
(term of office: 2 years)
- two members of the professional staff elected by the professional staff
(term of office: 2 years)
- three students of the University (not being persons in the full time employment of the University), one of whom must be a postgraduate student and one of whom must be an undergraduate student, appointed or elected in a manner determined by the Council.
(term of office: 1 year)
Sub section 3a) of Section 5 requires that
"Where a person is appointed to the Council, the appointing authority must recognise that the Council is, as far as practicable, to be constituted of equal numbers of men and women who -
(a) have a commitment to education and, in particular, to higher education; and
(b) have an understanding of, and commitment to, the principles of equal opportunity and social justice and, in particular, to access and equity in education".
Sub section 3b) requires that of the members appointed on the recommendation of the Selection Committee, at least two must have financial management expertise and at least one must have commercial expertise (demonstrated by relevant qualifications or relevant experience at a senior level in the public or private sector).
Section 6 (5a) requires that a member's term of office should not normally exceed 12 years unless otherwise specifically agreed by a resolution of Council.
Although not prescribed in the Act, the Selection Committee must also take into consideration provisions relating to the composition and skills and expertise of Council as identified in the Voluntary Code of Best Practice for the Governance of Australian Universities. In particular the Code requires that appointed members must be selected on the basis of their ability to contribute to the effective working of the Council by having the required skills, knowledge and experience, an appreciation of the values of the University and its core activities of teaching and research, its independence and academic freedom and the capacity to appreciate what the external community needs from the University.
4. Executive Committee of Council
4.1 Function and composition
Council has established an Executive Committee comprising:
- The Chancellor ex officio (Chair)
- The Deputy Chancellors ex officio
- The Vice-Chancellor ex officio
- Two external members of Council
- Chair, Academic Senate ex officio
4.2 Terms of reference
The terms of reference of the Executive Committee are at Appendix 6. The terms of reference include authority to decide urgent matters that the Chancellor and Vice-Chancellor consider cannot be held over until the next regular meeting of Council.
5. Secretary Of The Council
The Secretary of the Council is responsible for the secretarial work of all boards and committees of the University and for the performance of duties assigned to him or her by decision of the Council. The Secretary of the Council is responsible for all matters relating to the administration of Council including the preparation of agenda, minutes and papers for presentation to Council, the provision of advice and the development, analysis and interpretation of the legislation and procedures by which the operations of Council are regulated. The Secretary of the Council has delegated the operational aspects of this role to an administrative officer located in the Policy and Secretariat Section (referred to as the "Council Secretary").
Council members should contact the Council Secretary if they have queries about items in the Council agenda and minutes, if they wish to register an apology for a meeting, or if they want information about Council procedures.