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DEAKIN UNIVERSITY BILL 2009

            Deakin University Bill 2009

                         Introduction Print

               EXPLANATORY MEMORANDUM


                                  General
The Bill re-enacts with amendments the law relating to Deakin University,
repeals certain Acts relating to Deakin University that will be replaced by the
Bill and makes saving and transitional provisions.
The preamble to the Bill sets out the history of the establishment of Deakin
University and its aspirations.

                                Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the main purposes of the Bill, which are to re-enact with
            amendments the law relating to the University, including
            provisions reflecting best practice and a consistent approach to
            governance and reporting for universities in Victoria.

Clause 2    states the provisions of the Act commence on 1 January 2011, or
            earlier if proclaimed on a day or days before then.

Clause 3    defines terms used in the Bill. Some new definitions are included
            of which the most important are the definitions of guidelines and
            university commercial activity.

   PART 2--CONSTITUTION AND GOVERNANCE OF THE
                   UNIVERSITY

                       Division 1--The University
Clause 4    provides that the University as constituted under the Deakin
            University Act 1974, as in force immediately before its repeal,
            continues in existence under this Bill. The University is a body
            politic and corporate and consists of the Council, staff (other than
            excluded staff), graduates, students and emeritus professors.



561361                                 1      BILL LA INTRODUCTION 16/9/2009

 


 

Clause 5 sets out the objects of the University which include the provision and maintenance of a teaching and learning environment and the conduct of pure and applied research of excellent quality. The objects have also been updated so as to reflect the objects of a modern University with international standards and the provision of education and training beyond the traditional domain of higher education. The objects express a commitment to principles of equity and social justice and acknowledge a particular commitment to safeguarding the ancient and rich heritage of Aboriginal and Torres Strait Islander peoples and assisting those peoples to realise their aspirations. Clause 6 sets out the general powers and functions of the University including the powers to do the acts and things that a body corporate may do and the broad and general power to do anything necessary or convenient to be done for or in connection with its objects, powers and functions. The clause clarifies that the University may exercise its powers and functions in all Australian jurisdictions and internationally. Clause 6 re-enacts the existing powers and functions of the University. However the provisions that deal with the University's power to be a member of a company, association, trust or partnership, or to form or participate in the formation of a company, association, trust, or partnership, or to enter joint ventures or joint undertakings, are now subject to compliance with guidelines approved by the Minister. Clause 7 provides for the keeping and use of the common seal. Division 2--The Council Clause 8 establishes a Council as the governing body of the University, exercising all the powers, functions and duties of the University. It sets out the Council's primary responsibilities. Clause 9 sets out the functions and powers of the Council, which include the appointment of officers, establishment of policies related to governance and the oversight and review of the management of the University. Clause 10 authorises the Council to confer degrees or grant awards and provides the power to revoke a degree or award. 2

 


 

Clause 11 provides for Council membership, which is to consist of between 14 and 21 people, being the Chancellor, the Vice-Chancellor and the president of the academic board, at least 3 members appointed by the Governor in Council and one member appointed by the Minister, at least 4 members appointed by the Council and at least 3 members elected from staff and students. Clause 12 provides for members who are appointed either by the Governor in Council, on the recommendation of the Minister, or by the Minister; the matters to which the Minister must have regard in appointing members; the removal of appointed members; and stipulates that no more than 2 appointed members may be people whose normal place of residence is outside Australia. Clause 13 enables the Council to appoint people to the Council, lists the matters to which the Council must have regard in appointing members and stipulates that no more than 2 Council appointed members may be persons whose normal place of residence is outside Australia. Clause 14 prohibits a person who is a member of Parliament from being a member of the Council. It also prohibits a person who is, or becomes, disqualified from managing corporations under Part 2D.6 of the Corporations Act or who is, or has been, convicted or found guilty of an indictable offence from being a member of the Council. Clause 15 sets out the responsibilities of Council members. Clause 16 provides that Council members may be paid the remuneration and fees fixed by the Minister. Clause 17 provides that Schedule 1 dealing with the membership and procedure of the Council has effect. Clause 18 authorises the Council to delegate its powers and functions to a member of the Council, a committee of the Council, a member of the staff of the University, the academic board or its equivalent or any other entity prescribed by the university statutes. The clause sets out specific limitations on these delegations. Clause 19 requires that the University must indemnify each Council member, members of certain committees and any member of the academic board or equivalent against certain actions or claims. 3

 


 

PART 3--PERSONS AND BODIES CONNECTED WITH THE UNIVERSITY Clause 20 provides for the establishment of an academic board or its equivalent and the powers, functions and membership of that body. Clause 21 provides that there are faculties, departments, divisions, centres, units, schools, and institutes of the University, as specified by the Council. Clause 22 provides that the person who holds the office of Governor of the State is the Visitor of the University with ceremonial functions only. Clause 23 provides for an acting Visitor to act in the Visitor's absence. PART 4--OFFICERS OF THE UNIVERSITY Clause 24 provides for a Chancellor of the University appointed by the Council and the terms and conditions of that office. Clause 25 provides for the appointment and term of office of least one deputy chancellor of the University who must be appointed by the Council. Clause 26 provides for a Vice-Chancellor and President of the University who is to be the chief executive officer of the University with the functions, powers and duties conferred or imposed upon him or her by or under any Act, university statute or university regulation or by the Council. Clause 27 enables the Council to appoint an acting Vice-Chancellor and deputy vice-chancellors. PART 5--UNIVERSITY STATUTES AND UNIVERSITY REGULATIONS Clause 28 provides that the Council may make university statutes and university regulations about the University and any person entering, or on, land or other property of the University or using University facilities. Clause 29 lists those matters about which the Council may make statutes and regulations, including matters that are necessary or expedient to be made for the good governance of the University or for the management of its affairs. It provides for statutes to be made about affiliated bodies. 4

 


 

Clause 30 provides that a university statute made by the Council may provide for the making of university regulations by the Council or, if the university statute authorises it, by the Vice-Chancellor or the academic board or its equivalent. It provides that a university statute made by the Council may provide for the manner of making, promulgation and revocation or amendment of a university regulation. Clause 31 sets out the requirements for making a university statute which includes the Minister's approval. It provides for the publication of university statutes. It also empowers the revocation or amendment of university statutes. Clause 32 provides for the commencement of university statutes. Clause 33 Subclause (1) reflects the current position that university statutes and regulations are not statutory rules under the Subordinate Legislation Act 1994. Subclause (2) reflects the current position that a university statute or regulation is not subject to section 32 of the Interpretation of Legislation Act 1984, which relates to the incorporation of documents. Clause 34 provides that a university statute or a university regulation under the University's common seal is evidence of the making and authenticity of the university statute or university regulation. PART 6--PROPERTY, FINANCE AND COMMERCIAL ACTIVITIES Division 1--Property generally Clause 35 authorises the University to purchase or acquire property by gift, grant, bequest or devise and to dispose of property. Division 2--Land Clause 36 authorises the Minister, after consultation with the University, to acquire, by agreement or compulsorily, land for the purposes of, or in connection with, the University. Clause 37 imposes limitations on the University in dealing with land acquired by the Minister for the University. It also limits how the University can deal with Crown land granted to it by the Minister. 5

 


 

Clause 38 provides that the limitations on disposal of land in the previous clauses do not apply to any land which in the Council's opinion was acquired for investment purposes. Division 3--Trust funds and related matters Clause 39 authorises the University to create and administer any trust fund or funds for any other purpose. Clause 40 authorises the University to establish one or more investment common funds for the collective investment of trust funds and other funds held by or in the custody of the University. It sets out how the University can deal with the investment common funds. Clause 41 requires the University to periodically distribute income of each investment common fund among the funds participating in the pool and authorises the University to add some portion of income of each investment common fund to the capital of the common fund, or establish a fund or funds as a provision against capital depreciation or reduction in income. Clause 42 authorises the University to deduct an amount not exceeding 5% out of the annual income of a trust fund in an investment common fund as commission for administration of the trust fund. Clause 43 provides an express power for the Council to delegate its functions, powers and duties as a trustee under this Division to a committee of the Council or a designated staff member of the University. Division 4--Finance Clause 44 requires that all fees and other money received by or on behalf of the University must be applied by the University solely for the objects and purposes of the University. Clause 45 authorises the University, for the purpose of carrying out or performing its powers, authorities, duties or functions, to borrow money at interest or obtain financial accommodation or enter into and perform financial arrangements. Clause 46 authorises the University to invest money of the University in any manner authorised by the Council. The clause allows any endowment held by the University to be invested in any manner in which moneys may be invested under the Trustee Act 1958. Clause 47 this is a new provision that requires the Council to arrange for an audit of the University's income and expenditure, in accordance with guidelines approved under Division 6. 6

 


 

Division 5--Joint ventures and companies Clause 48 provides that for the purposes of one or more of its objects, the University may, in accordance with guidelines, form, participate in the formation, manage or be a member of a company, association, trust or partnership and enter into a joint venture or joint undertaking. Clause 49 requires that, if the University forms, participates in the formation of, or is a member of a limited company in accordance with the Bill and has control of that company, the accounts of the limited company must be audited annually by the Auditor- General. Clause 50 requires that if the University forms, participates in the formation of, or is a member of, a company in Australia that is not incorporated or taken to be incorporated under the Corporations Act and has control of that company the accounts must be audited annually by the Auditor-General. Clause 51 provides for the powers of the Auditor-General in conducting audits of companies in addition to the powers under the Audit Act 1994. Division 6--Guidelines Clause 52 provides that Minister may declare an activity to be a university commercial activity and declare a commercial activity not to be a university commercial activity. The Minister's power of inclusion and exclusion is necessary given the very broad concept of commercial activity. Clause 53 enables the University to submit to the Minister, for approval, guidelines about university commercial activities, auditing, finance and property and other matters. Clause 54 requires the Minister to consult with the Treasurer and the University before approving or making any guidelines. Clause 55 authorises the Minister to approve guidelines and make interim guidelines. Clause 56 provides for the publication and commencement of guidelines. Clause 57 requires that the guidelines must not be inconsistent with a university statute or a university regulation. Clause 58 provides for Council compliance with the guidelines. 7

 


 

Clause 59 authorises the Minister to request the University to provide a report on university commercial activities generally, any particular university commercial activity or any aspect of a university commercial activity. Clause 60 provides for the Minister to refer to the Auditor-General a university commercial activity or any aspect of a university commercial activity for investigation and report. PART 7--GENERAL Clause 61 provides that a fine imposed under a university statute or university regulation is a civil debt recoverable summarily. Clause 62 provides that a certificate in writing signed by the Vice- Chancellor or by a person appointed by the Vice-Chancellor about fines is prima facie evidence of the facts stated in the certificate. PART 8--REPEALS AND TRANSITIONAL MATTERS Division 1--Repeals Clause 63 repeals the Acts that originally constituted the University and its constituent bodies. Division 2--Transitional provisions Clause 64 defines terms used in this Division. Clause 65 provides that the specific transitional provisions in this Bill are in addition to the savings and transitional provisions in the Interpretation of Legislation Act 1984. Clause 66 provides that the University is taken to be the same body as it was immediately before the repeal of the old Act, despite any changes to the constitution of the University. It also ensures no decision, matter or thing is affected because of those changes. The clause also provides that all property vested in the University and any money belonging to the University before the repeal of the old Act may, after that repeal, be used or invested by the University. Clause 67 continues the current Council under the old Act in existence and provides that no decision, matter or thing is affected because of the changes in the constitution of the Council. The clause also provides that property vested in the Council and any money belonging to the Council before the repeal of the old Act may be used or invested by the Council under the Bill. 8

 


 

Clause 68 continues existing Council members in office. Clause 69 saves the employment of staff of the University. Clause 70 re-construes references in the old Act to new provisions in the Bill. Clause 71 provides for the saving of gifts, dispositions or trusts of property or trust funds to which the old Act applied. Clause 72 saves existing statutes and regulations of the University made under the old Act so they continue in operation as university statutes or university regulations under this Bill. Clause 73 provides that the Governor in Council may make regulations containing transitional provisions. Division 3--Repeal of Division 1 Clause 74 provides for the automatic repeal of Division 1 on 1 January 2012. The repeal of Division 1 does not affect the continuing operation of the repeals made by it (see section 15(1) of the Interpretation of Legislation Act 1984). SCHEDULE 1 This Schedule provides for matters dealing with membership of the Council and the procedures and requirements for meetings of the Council. A new provision enables an interim appointment of a member for a period not exceeding 6 months. 9

 


 

 


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