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UNIVERSITY OF TECHNOLOGY SYDNEY ACT 1989 No 69

Part 4 — Functions of Council

DIVISION 1 — General

16 Functions of Council

16A Controlled entities

17 Delegation by Council

17A Operation of certain Acts

17B Recommendations of Ombudsman or Auditor-General

DIVISION 2 — Property

18 Powers of Council relating to property

19 Powers of Council over certain property vested in Crown

20 Acquisition of land

21 Grant or transfer of certain land to University

DIVISION 3 — Commercial activities

21A Definitions

21B Guidelines for commercial activities

21C Register of commercial activities

21D Reports to Minister on commercial activities

21E Referral of matters to Ombudsman or Auditor-General

DIVISION 1 — General

16 Functions of Council

(1A) The Council:

(a) acts for and on behalf of the University in the exercise of the University's functions, and

(b) has the control and management of the affairs and concerns of the University, and

(c) may act in all matters concerning the University in such manner as appears to the Council to be best calculated to promote the object and interests of the University.

(1B) Without limiting the functions of the Council under subsection (1A), the Council is, in controlling and managing the affairs and concerns of the University:

(a) to monitor the performance of the Vice-Chancellor, and

(b) to oversee the University's performance, and

(c) to oversee the academic activities of the University, and

(d) to approve the University's mission, strategic direction, annual budget and business plan, and

(e) to oversee risk management and risk assessment across the University (including, if necessary, taking reasonable steps to obtain independent audit reports of entities in which the University has an interest but which it does not control or with which it has entered into a joint venture), and

(e1) without limiting paragraph (e), to enter into or participate in arrangements or transactions, or combinations of arrangements or transactions, to effect financial adjustments for the management of financial risks, and

(f) to approve and monitor systems of control and accountability for the University (including in relation to controlled entities within the meaning of section 16A), and

(g) to approve significant University commercial activities (within the meaning of section 21A), and

(h) to establish policies and procedural principles for the University consistent with legal requirements and community expectations, and

(i) to ensure that the University's grievance procedures, and information concerning any rights of appeal or review conferred by or under any Act, are published in a form that is readily accessible to the public, and

(j) to regularly review its own performance (in light of its functions and obligations imposed by or under this or any other Act), and

(k) to adopt a statement of its primary responsibilities, and

(l) to make available for members of the Council a program of induction and of development relevant to their role as such a member.

(1) Without limiting the functions of the Council under subsection (1A), the Council may, for and on behalf of the University in the exercise of the University's functions:

(a) provide such courses, and confer such degrees and award such diplomas and other certificates, as it thinks fit,

(b) appoint and terminate the appointment of academic and other staff of the University,

(c) (repealed)

(d) obtain financial accommodation (including, without limitation, by the borrowing or raising of money) and do all things necessary or convenient to be done in connection with obtaining financial accommodation,

(e) invest any funds belonging to or vested in the University,

(f) promote, establish or participate in (whether by means of debt, equity, contribution of assets or by other means) partnerships, trusts, companies and other incorporated bodies, or joint ventures (whether or not incorporated),

(g) (repealed)

(h) establish and maintain branches and colleges of the University, within the University and elsewhere,

(i) make loans and grants to students, and

(j) impose fees, charges and fines.

(2) The functions of the Council under this section shall be exercised subject to the by-laws.

(3) Schedule 2 has effect in relation to the investment of funds by the Council.

Note: The Annual Reports (Statutory Bodies) Act 1984 regulates the making of annual reports to Parliament by the Council and requires the Council to report on the University's operations (including in relation to risk management and insurance arrangements) and a range of financial and other matters.

16A Controlled entities

(1) The Council must ensure that a controlled entity does not exercise any function or engage in any activity that the University is not authorised by or under this Act to exercise or engage in, except to the extent that the Council is permitted to do so by the Minister under this section.

(2) The Minister may, by order in writing, permit the Council to authorise a controlled entity to exercise a function or engage in an activity of the kind referred to in subsection (1). Permission may be given in respect of a specified function or activity or functions or activities of a specified class.

(3) The Governor may make regulations providing that subsection (1) does not apply to functions or activities of a specified class.

(4) Nothing in the preceding subsections confers power on a controlled entity to engage in any activity.

(5) Nothing in the preceding subsections affects any obligations imposed on a controlled entity by or under any Act or law, other than an obligation imposed on the controlled entity by the Council at its discretion.

(5A) The Council is, as far as is reasonably practicable, to ensure:

(a) that the governing bodies of controlled entities:

(i) possess the expertise and experience necessary to provide proper stewardship and control, and

(ii) comprise, where possible, at least some members who are not members of the Council or members of staff, or students, of the University, and

(iii) adopt and evaluate their own governance principles, and

(iv) document, and keep updated, a corporate or business strategy containing achievable and measurable performance targets, and

(b) that a protocol is established regarding reporting by governing bodies of controlled entities to the Council.

(6) In this section:

controlled entity means a person, group of persons or body of which the University or Council has control within the meaning of a standard referred to in section 39(1A) or 45A(1A) of the Public Finance and Audit Act 1983.

17 Delegation by Council

The Council may, in relation to any matter or class of matters, or in relation to any activity or function of the University, by resolution, delegate all or any of its functions (except this power of delegation) to any member or committee of the Council or to any authority or officer of the University or to any other person or body prescribed by the by-laws.

17A Operation of certain Acts

Nothing in this Act limits or otherwise affects the operation of the Ombudsman Act 1974, the Public Finance and Audit Act 1983 or the Annual Reports (Statutory Bodies) Act 1984 to or in respect of the University or the Council.

17B Recommendations of Ombudsman or Auditor-General

The Council must include in each annual report of the Council as part of the report of its operations a report as to any action taken by the Council during the period to which the report relates to implement any recommendation made in a report of the Ombudsman or the Auditor-General concerning the Council or the University:

(a) whether or not the recommendation relates to a referral by the Minister under section 21E, and

(b) whether or not the recommendation relates to a University commercial activity (as defined in section 21A).

DIVISION 2 — Property

18 Powers of Council relating to property

(1) The Council:

(a) may acquire (whether by purchase, gift, grant, bequest, devise or otherwise) any property for the purposes of this Act and may agree to carry out the conditions of any such acquisition, and

(b) has the control and management of all property at any time vested in or acquired by the University and may, subject to this section, dispose of property in the name and on behalf of the University.

(2) The Council may, subject to this section, alienate, mortgage, charge or demise any lands of the University and may dispose of or otherwise deal with any other property of the University.

(2A) The Council must not alienate, mortgage, charge or demise any lands acquired by the University from the State at nominal or less than market value except with the approval of the Minister.

(3) Despite subsection (2A), the Council may, without the approval of the Minister, lease any such lands if:

(a) the term of the lease does not exceed 21 years, and

(b) the Council is satisfied that it is to the benefit of the University, whether from a financial or educational standpoint or otherwise, that the lease be entered into.

(4) In the case of a lease of any lands of the University, or any renewal of the lease, to a residential college affiliated with the University, the lease:

(a) shall be for a term not exceeding 99 years, and

(b) shall be at a nominal rent, and

(c) shall contain a condition that the lease shall not be assigned and such other conditions as the Council thinks fit.

(4A) The Council may enter into a voluntary planning agreement under the Environmental Planning and Assessment Act 1979:

(a) except as provided by paragraph (b) — without the approval of the Minister, or

(b) in the case of an agreement requiring any lands acquired by the University from the State at nominal or less than market value to be dedicated free of cost — only with the approval of the Minister.

(5) The rule of law against remoteness of vesting does not apply to or in respect of any condition of a gift, grant, bequest or devise to which the University has agreed.

19 Powers of Council over certain property vested in Crown

(1) Where any property used for the conduct of the University is vested in the Crown or a Minister of the Crown (whether as Constructing Authority or otherwise), the Council has the control and management of that property and is responsible for its maintenance.

(2) Nothing in subsection (1) enables the Council to alienate, mortgage, charge or demise any land vested in the Crown or a Minister of the Crown (whether as Constructing Authority or otherwise).

(3) Notwithstanding subsection (2), the Council may (on behalf of the Crown or a Minister of the Crown) lease land of which it has, pursuant to this section, the control and management.

(4) Such a lease:

(a) must not be granted for a term (including any option for the grant of a further term) exceeding 21 years except with the approval of the Minister, and

(b) must contain a condition that the lease must not be assigned and such other conditions as the Council thinks fit.

(5) The Council is, in the exercise of its functions under this section, subject to the control and direction of the Minister.

20 Acquisition of land

(1) The Minister may, for the purposes of this Act, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2) The Minister may do so only if the University:

(a) applies to the Minister for acquisition of the land, and

(b) makes provision to the satisfaction of the Minister for the payment of the purchase price or of compensation for compulsory acquisition (together with all necessary charges and expenses incidental to the acquisition).

(3) For the purposes of the Public Works Act 1912, any acquisition of land under this section is taken to be for an authorised work and the Minister is, in relation to that authorised work, taken to be the Constructing Authority.

(4) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this section.

21 Grant or transfer of certain land to University

(1) If land on which the University is conducted is vested in the Crown or a Minister of the Crown (whether as Constructing Authority or otherwise), the land may:

(a) if it is vested in the Crown – be transferred to the University subject to such trusts, conditions, covenants, provisions, exceptions and reservations as the Minister for Natural Resources thinks fit, or

(b) if it is vested in a Minister of the Crown – be conveyed or transferred to the University for such estate, and subject to such trusts and rights of way or other easements, as the Minister in whom the land is vested thinks fit.

(2) A conveyance, transfer or other instrument executed for the purposes of this section:

(a) is not liable to stamp duty under the Stamp Duties Act 1920, and

(b) may be registered under any Act without fee.

DIVISION 3 — Commercial activities

21A Definitions

In this Division:

the Guidelines means the guidelines determined for the time being under section 21B.

University commercial activity means:

(a) any activity engaged in by or on behalf of the University in the exercise of commercial functions of the University, and

(b) any other activity comprising the promotion of, establishment of or participation in any partnership, trust, company or other incorporated body, or joint venture, by or on behalf of the University, that is for the time being declared by the Guidelines to be a University commercial activity.

21B Guidelines for commercial activities

(1) The Council must by resolution determine, and must maintain, Guidelines requiring specified processes and procedures to be followed in connection with University commercial activities.

(2) The Council may by resolution amend or replace the Guidelines from time to time.

(3) Without limitation, the Guidelines may contain provision for or with respect to the following in connection with University commercial activities:

(a) requiring feasibility and due diligence assessment,

(b) requiring the identification of appropriate governance and administrative arrangements (including as to legal structures and audit requirements),

(c) requiring the undertaking of risk assessment and risk management measures,

(d) regulating and imposing requirements concerning the delegation by the Council of any of its functions under this Act in connection with University commercial activities,

(e) declaring a specified activity to be a University commercial activity for the purposes of paragraph (b) of the definition of that expression in section 21A,

(f) establishing a protocol regarding the rights and responsibilities of members of the Council in relation to commercialisation, with a view to avoiding real or apparent conflicts of interest.

(4) The Council must ensure that the Guidelines are complied with.

(5) (repealed)

(6) (repealed)

21C Register of commercial activities

(1) The Council is to maintain a Register of University commercial activities and is to enter and keep in the Register the following details of each of those activities:

(a) a description of the activity,

(b) details of all parties who participate in the activity,

(c) details of any appointment by or on behalf of the University to relevant boards or other governing bodies,

(d) details of any meetings at which relevant matters were considered and approved for the purposes of compliance with the Guidelines,

(e) such other details as the Guidelines may require.

(2) The Guidelines may make provision for the following:

(a) exempting specified activities or activities of a specified class from all or specified requirements of this section,

(b) altering the details to be included in the Register in respect of specified activities or activities of a specified class,

(c) enabling related activities to be treated as a single activity for the purposes of the Register.

(3) The Council must comply with any request by the Minister to provide the Minister with a copy of the Register or any extract from the Register.

21D Reports to Minister on commercial activities

(1) The Minister may request a report from the Council as to University commercial activities or as to any particular University commercial activity or aspect of a University commercial activity.

(2) The Council must provide a report to the Minister in accordance with the Minister's request.

21E Referral of matters to Ombudsman or Auditor-General

The Minister may refer a University commercial activity or any aspect of a University commercial activity (whether or not the subject of a report by the Council to the Minister):

(a) to the Auditor-General for investigation and report to the Minister, or

(b) as a complaint to the Ombudsman that may be investigated by the Ombudsman as a complaint under the Ombudsman Act 1974.