How UTAS got out of control – Part 2: amendments to the UTAS Act 2001-12

Introduction

In Part 1 of this article, I outlined how a strong sense of UTAS’ accountability to the Government and people of Tasmania, as described by then Education Minister Beswick in 1992, declined to the extent that by 2022 Premier Rockliff was (erroneously) denying that UTAS had any accountability to the Government at all.

I also described how, without thought of any future attempt by UTAS to sell/lease the whole Sandy Bay campus site, in passing the University of Tasmania Act 1992 (the 1992 Act), the Parliament removed the restraint on UTAS from selling or leasing its Sandy Bay site that had existed in previous legislation.

However, while I argued that the creeping notion in UTAS that it might be able to sell/lease the Sandy Bay site is clearly a major part, and driver, of the current UTAS malaise, it is only one part. There are a number of other interconnecting and compounding factors that have led to the current dissatisfaction with almost every facet of UTAS’ operations and culture, as demonstrated in the submissions to the Legislative Council Inquiry.

The factor for consideration here is the erosion of the public accountability and representativeness of the UTAS Council.

Changes in the makeup of the UTAS Council 2001-2012

As established by the 1992 Act, the UTAS Council was not only to serve as the paramount governing body of UTAS, but it was also explicitly to act as an accountability mechanism to the Government and Parliament, with members from the Parliament and government agencies, and a broad representational base.

A series of amendments to the 1992 Act between 2001 and 2012, however, radically changed the makeup of the UTAS Council (see the Table below).  The direct link to the Parliament was removed by an amendment in 2001, while the appointment of senior government agency staff (who typically came from within the Department of Education) has been sporadic in the last 20 years. 

• Based on documents provided to me under the Right to Information Act (RTI) 2009, the link to the Department of Education does not really appear to have served as an accountability mechanism in recent years, even when departmental staff have been appointed to the UTAS Council.

Some of the other more striking changes from 1992 to 2012 (and carrying through to 2022), include:

• A reduction in academic, student and graduate representation from 11 out of 24 members (46%) under the 1992 Act, as passed, down to three out of 14 members (21%) under the 2012 amendment.

• A reduction in academic representation (alone) from six out of 24 (25%) in 1992 to two out of 14 (14%) in 2012 – I note the strong argument (eg by Jamie Kirkpatrick), however, that the Chair of the Academic Senate is now more an administrative post than an academic one – if this is factored in academic representation has decreased to one out of 14 (7%).

• A reduction in elected representatives from 12 out of 24 members (50%) in 1992 (not counting elected representatives from the Parliament) to two out of 14 members (14%) under the 2012 amendment.

• An increase in Council appointed/elected members from six (25%), counting the Chancellor and VC, in 1992 to eight (57%) in 2012. 

• This comparison becomes sharper if Ministerial appointments are added to Council appointments, with six becoming eight in 1992 (33%) and eight becoming ten (71%) in 2012.  As the 1992 Act, with and without amendments, clearly contemplated close consultation between the Minister for Education and the UTAS Council over appointments, it seems reasonable to surmise that such consultation has regularly occurred, particularly in light of the joint advertisement by UTAS and the Government in 2021.

Table: Makeup of the UTAS Council 1992-2012

Notes: 1. Councillors appointed jointly by the UTAS Council and Minister have been counted as Council appointed in the 1992 Act column.  2. Since 2012 there have generally been six (non-student; non-Vice Chancellor) Council appointees on the Council. 3. Since 2012 there has only been one student appointee. 4. Since the 2004 amendment, there has been a requirement for the Minister and Council to consult on appointments (s8(5)(b) of the 1992 Act). 5. Figures in the dot points above the table are based on all Council positions being filled. This has not always been the case (the current UTAS Council has 13 members).

Issues

Direct consequences

The second reading speeches and parliamentary debate over the amendments to the 1992 Act between 2001 and 2012, indicate that changes to the membership of the UTAS Council were largely driven by national reform initiatives, particularly to provide management/business skills.  To some extent they were, but the changes made to the UTAS Council under the 2012 amendment sat at the extreme end of arrangements proposed under the Voluntary Code of Best Practice for the Governance of Australian Universities 2011 (Voluntary Code 2011), which had been endorsed by Commonwealth, State and Territory Education Ministers.   

• The Voluntary Code of 2011 and the successor version of 2018 are precisely that – voluntary codes. They provided, and continue to provide, significant latitude in regard to the makeup of the governing bodies of universities.

• The University Chancellors Council describes a University governance model in Australia that is quite broad: “Each university has a governing body variously called a Council, Senate or Board. The governing bodies vary in size from 10 to 21 members. Many have members appointed by the State government or Governor of the state in which they are registered as well as other external members selected for their various skills and experience. The majority also include representatives of the staff and student bodies as well as senior staff (ex officio).”

• It may be possible to identify Australian universities with similar makeup of their governing bodies to UTAS. It is certainly possible, however, to identify others that are dissimilar in providing, for example, for greater participation by academic staff and/or elected representatives, such as Sydney University or the Australian National University.

• Unlike the situation for UTAS, the governing legislation for many Australian universities have quite demanding requirements for annual reporting and/or restraints on the sale or leasing of land.

Whatever the motivation for the drastic UTAS approach, it is undeniable that the changes in the constitution of the UTAS Council have decreased the focus on the core business of the University – excellence in teaching and research – while increasing the focus on business management.  At the same time, the emphasis on direct accountability seems to have been totally lost or, at least, disregarded by both the UTAS Council and the State Government.

This has created the conditions for UTAS to involve itself in matters that should be the preserve of the Government, the Parliament and the Tasmanian people – most clearly in UTAS’ proposed (city shaping) Hobart CBD move and development of the Sandy Bay site as a new suburb. At the same time, it has allowed the State Government to disown responsibility, with – until recently – the seeming acquiescence of Parliament and a total lack of consultation other than through stage-managed UTAS processes.

• Details of UTAS’ most substantive consultation process in 2019 so far remain hidden from the public (I sought to obtain these details in April 2022 through an RTI application to UTAS, and the matter is now with the Ombudsman).

The changes in the makeup of the UTAS Council have also created the potential for the Council to self-replicate (through the appointment of people with outlooks/skills similar to the people they replaced) and the institutionalisation of group think, particularly as many appointees to the UTAS Council from the early 2000s served for long-terms (up to 10 years or more).

These trends have been exacerbated by an increased focus on ‘managerialist skills’ both within management and academic structures within UTAS and a significant reduction in the role and representation of academics in governance arrangements below the level of the UTAS Council. (See for example, this article by Peter Chapman, which highlights a number of key developments since the Dawkins reforms of the 1980s).

These are issues that I will explore further in coming Parts of this article.

Flaws in university governance arrangements

While I consider that UTAS represents an extreme, in looking at university governance in some detail since March this year, I have come to believe that the general university governance model in Australia is flawed.

Publicly listed companies in Australia are governed by, among other things, the Corporations Law, and are accountable to their shareholders and the market. Government Business Enterprises (GBEs) are, or should be, subject to strong monitoring arrangements by government agencies and are accountable to shareholder ministers.

In comparison, Australian university accountability arrangements are less stringent – although as I say UTAS is an extreme example and, even then, should be held much more accountable than it is.

With the increasing emphasis on Australian universities as businesses – with “business” having become a sort of de facto function/objective for universities – I believe more by way of formal accountability to government is required.

As it is, I believe the only things that definitively stand between most universities and disaster is the competence and character of their governing bodies. Where that competence and character is lacking, major problems will inevitably emerge, with governments lacking a legislated ability to intervene.

Lest it be thought that I make these comments solely from hindsight based on my view of UTAS, I would comment that from 1993 to 1998 I had close knowledge of a number of GBEs, including one that was “out of control” even with much more stringent accountability/oversight arrangements than apply to UTAS, or Australian universities generally. I have thought long and hard about governance arrangements since. I also served as a Director of a small company for five years.

Where a (relatively) new member of the UTAS Council, Emeritus Professor Peter Dawkins, in his submission to the Legislative Council Inquiry, describes the 1992 Act as superior to the Melbourne and Victoria University Acts, and the makeup of the UTAS Council as “very likely best practice”, I see worst practice.

What was the Parliament thinking when it amended the 1992 Act?

Sadly, not enough.

For example, when then Chancellor of UTAS, Damian Bugg, approached the Government with an extreme governance model in 2011, there was clearly a lack of questioning in the Government and Parliament. However, while in the second reading debate in the House of Assembly in 2012, buzz phrases like “contemporary management and governance practices” abounded, words like “autonomy’ and “independence” (current favourites by some politicians for UTAS) were entirely missing from debate. Even in 2012, there was still a strong sense of the accountability of UTAS to the Government and Parliament.

Given this, it seems incomprehensible that, in passing amendments to the 1992 Act, which radically altered the constitution of the UTAS Council and removed direct accountability arrangements, the Parliament did not consider increasing other forms of accountability.  For example, reintroduction of a requirement to consult with the Government over land sales and leases might have been contemplated, in line with legislative requirements for a number of other universities, as might more regular and prescriptive reporting requirements. 

As it is, the requirements for an annual report by UTAS remain incredibly weak. This has been fully exploited by a UTAS management clique who are little interested in transparency.

In Part 3 of this article, I intend to focus on the thinking of the 2012 Parliament in more detail as it brings into relief some of the major issues in 2022.