Universities as law-makers

The public universities of Australia are created by laws enacted by Australian parliaments: their legal personality comes from the Acts by which they are created.  In this they resemble many other statutory entities, having power to enter contracts, employ people and to sue and be sued. The power to do these things can be exercised by their supreme decision-making bodies (university councils) or by others on whom decision making-power has been conferred by legislation or delegation.

There is something else that public universities can do – they can make laws, or, more specifically, subordinate (or “secondary”) legislation.  This provides universities with a regulatory power, additional to their power as legal entities to regulate their staff under employment contracts or their students under (for want of a better name) education contracts.

We explored this topic in our February 2015 Newsletter, looking at the hierarchy of legislation (and asking, “what are regulations good for”). We looked at university governance instruments, some of their important features and the entities responsible for making them.  The Newsletter can be downloaded from our Newsletters page.

University governance instruments

University Act:  Legal status of the university, including powers and objectives. Specific restrictions on powers.  Responsible entity - Parliament.

University statutes:  High level issues, including rights and obligations and procedural protections.  Responsible entity: High-level decision-maker in the University (may require higher level approval, ie. if required by the University Act).

University regulations:  Regulatory requirements, legal effect of decisions, legal context for policies.  Responsible entity:  Subject to the Act and statutes, lower-level decision-maker.

Policies and guidelines:  Criteria for decision-making.   Responsible entity: The University.

Procedures:  Documents which set out standard management processes, intended to produce consistency of process.  Responsible entity:  The University.

Delegations:  Delegations allocate decision-making power within the organisation.The power to delegate should be conferred by the University Act. The delegate might be a person (usually the holder of an office) or a committee, and the delegation may be subject to conditions or limitations).