Duties and responsibilities
Duties and responsibilities of Council Members under the La Trobe University Act 2009
Introduction
The purpose of this paper is to provide a brief guide to the duties and responsibilities of Council members under the La Trobe University Act 2009 (herein the 'Act'), which came into operation on 1 July 2010.i
The Council
The Council is the principal governing body of the University. It is established under Division 2 of Part 2 of the Act,ii and most of its key powers and functions are also set out in that Division. The establishment of the Council at the apex of the University's governance structure is provided for in section 8(2) of the Act, which states the Council—
(a) is the governing body of the University;
(b) has the general direction and superintendence of the University; and
(c) subject to the Act, the Statutes and regulations, may exercise all the powers, functions and duties of the University.
As the University's principal governing body, the Council has a very broad range of important responsibilities, including (among other things)—
(a) appointing and monitoring the performance of the University's CEO – the Vice-Chancellor;iii
(b) setting the strategic direction of the University by approving such things as the University's mission, annual budget and business plan and by overseeing and reviewing the management and performance of the University more generally;iv
(c) establishing policies and procedures for the operation of the University, overseeing and monitoring its academic activities and approving significant commercial activities in accordance with the approved Commercial Activity Guidelines;v
(d) approving and monitoring systems of control and accountability of the University and its controlled entities;vi
(e) overseeing and monitoring the assessment and management of risk across the University, including University commercial activities;vii
(f) conferring degrees and granting other awards;viii
(g) establishing the key features of the University's internal organisational structure by establishing the Academic Boardix and specifying the faculties, departments, divisions, centres, units, schools and so on of the University;x
(h) appointing the Chancellor and Deputy Chancellor;xi
(i) making statutes and regulations on a wide range of matters relating to the University;xii and
(j) determining how the common seal of the University is to be kept and used.xiii
The Council also has the power to 'do anything else necessary or convenient to be done for or in connection with its powers and functions',xiv and to delegate any of its powers and functions to members of Council, Council committees, staff members or the Academic Board.xv Two important examples of delegated powers include those relating to contract signing and the approval of expenditures.
Duties and responsibilities of Council members
The University is a body corporate, and the position of the Council is in many ways analogous to that of the board of directors in a corporation. The University and the Council are not regulated by the Corporations Act 2001 (Cth) and the requirements of that legislation do not apply to the University and the Council. The Act does however impose similar obligations on members of the Council as are imposed on directors of a corporation.
The Council makes decisions collectively in accordance with its own procedures (typically at meetings)xvi, the majority of which are set out in the Schedule to the Act. Although Council members usually discharge their powers and functions collectively, each Council member is individually responsible (and liable) for his or her conduct as a Council member. Council members are under a general obligation to act reasonably to ensure that the Council carries out its functions and exercises its powers appropriately, effectively and efficiently.
Each Council member must, when exercising his or her powers and discharging his or her functions as a Council member—
(a) Act in the best interests of the University as a whole
Council members are fiduciaries and as such are duty-bound to act in the interests of the University. To help achieve this, Council members must act honestly, in good faith and for proper purposes consistent with the objects and interests of the University. Acting for proper purposes essentially means that a Council member must exercise his or her powers and discretions consistently with the purpose for which the power or discretion is conferred and must use his or her powers for improper, irrelevant or inappropriate purposes.
(b) Avoid conflicts of interest
The flip-side of being duty bound to act in the interests of the University is the duty to avoid conflicts of interest. Broadly speaking, a conflict of interest can arise where a Council member puts his or her personal interests ahead of the interests of the University or makes improper use of his or her position as a Council member (for example, by misuse of information that he or she had access to by reason of being a Council member). Because Council members are fiduciaries they are duty-bound to take all reasonable steps to avoid undisclosed conflicts of interest. The essence of the rule against conflicts is whether a Council member can bring an independent judgment to bear or whether the conflicting interest or duty is so significant as to divide his or her loyalties. Conflicts of interest can be disclosed to the Council in accordance with Council procedures.xvii
(c) Exercise reasonable care and diligence
A member of Council must take reasonable steps to place him or herself in a position to carry out his or her role as a Council member and to guide and monitor University management. For example, a Council member should attend Council meetings, inform him or herself on the fundamentals of the University's affairs (for example, its financial position) and, where necessary, take advice on these things from University management, committees of Council and other appropriate bodies. In light of the Centro decision and the Council's practice of approving the annual accounts, it is also arguable that all Council members should be able to read and understand the University's financial statements.
Council members should gain an understanding of the risks associated with the operations of University and ensure that the University has and uses appropriate resources and processes to eliminate or minimise risks. Council members should also ensure that adequate reporting and supervision systems are in place throughout the University to enable the Council to carry out its role as the principal governing body of the University. In practice, this is done through the policies and procedures which Council or its various committees has established for the governance of the University.
When delegating powers to individuals, committees or other bodies (such as the Academic Board), Council members should satisfy themselves on reasonable grounds that the proposed delegate will exercise the delegated power for a proper purpose, and that the delegate is reliable and competent. Council members are required to have an inquiring mind, to apply their knowledge of the University's operations to information that is provided to them by management (including financial statements or other financial reports) and to ask appropriate questions.
Indemnity
Section 19 of the Act requires the University to indemnify each member of the Council, a committee of Council (or any committee constituted under a University Statute or regulation) and each member of the Academic Board. This indemnity protects each such member against actions and claims that may arise in relation to anything done (or not done) in good faith in the exercise or purported exercise of any exercise of a power or duty of the Council, committee, Academic Board or the members themselves.
Contact
This brief paper provides only a summary of the key duties and responsibilities of Council members. The University's General Counsel, Legal and Governance should be contacted for advice about specific matters (9479 1695 or legal.services@Latrobe.edu.au).
The Act can be viewed online (external site).
Footnotes
i Note that the La Trobe University Act 2009 repealed the earlier La Trobe University Act 1964.
ii Division 2 of Part 2 of the Act contains sections 8 to 19.
iii Section 8(3)(a).
iv Sections 8(3)(b) & (c).
v Section 8(3)(d), (g) and (h). Note that Commercial Activity Guidelines are approved by the Minister.
vi Section 8(3)(e).
vii Section 8(3)(f).
viii Section 10.
ix Section 20.
x Section 21.
xi Sections 24 and 25.
xii Part 5 of the Act.
xiii Section 7 of the Act. At common law, a common seal is essentially the "signature" of a corporation. Since a corporation can use its common seal to "sign" legal documents like contracts and deeds, it is quite important and its custody and use is typically the responsibility of the corporation's governing body.
xiv Section 9(1)(g).
xv Section 18.
xvi Note that the quorum at a meeting of Council is a minimum of 8 members present at the meeting – clause 12 of the Schedule to the Act.
xvii In particular, see clause 11 of the Schedule to the Act.