How UTAS got out of control – Part 3: accountability lost

Preview – my next post will focus on what I believe is a major scandal as it involves serious misrepresentations regarding a certain UTAS activity. Readers will find that this post here and my first ever post, RTI papers reveal Government left governing to UTAS, provide useful background.

I appreciate that this is long post – for those short on time, you may wish to focus on comparing the statements of Jeremy Rockliff and Michael Ferguson from 2012 with their recent statements.

Key Points

In Part 1, I discussed how it came about that, in passing the University of Tasmania Act 1992 (UTAS Act), the Parliament of the day removed the restraint on UTAS from selling or leasing the Sandy Bay campus site that had existed in previous legislation. The Parliament simply did not envisage that UTAS might one day seek to sell/lease the entire Sandy Bay site, but it anyway explicitly balanced UTAS’ increased ‘freedom’ with direct accountability to the Parliament through the makeup of the UTAS Council.

In Part 2, I discussed how that accountability, and the representative nature, of the UTAS Council were eroded through a series of amendments to the UTAS Act between 2001 and 2012.

This 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).

I also discussed how the changes in the makeup of the UTAS Council 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 since 2012.

A policy decision of the magnitude of UTAS’ proposed move to the Hobart CBD, and redevelopment of the Sandy Bay Campus as a new suburb, should be the preserve of the Government and, by extension, the Parliament and the people of Tasmania.

Instead, the Government has outsourced policy to UTAS, allowing it to govern in its own self-appointed domain.

Such outsourcing of policy to UTAS should have been unconscionable, particularly as – like any business organisation – UTAS (or the clique that runs UTAS) has become fundamentally self-serving. UTAS does not seek to balance a broad array of interests and objectives, as might reasonably have been expected of government. It certainly does not respect public opinion.

The dangers inherent in this situation have now been fully realised. As I have previously discussed (see my LegCo submission, pp7-10), and as I will discuss in more detail in Part 4 of this series, from 2016 at the latest (and possibly 2015) the discredited former Vice-Chancellor (VC) Peter Rathjen set a determined course to relocate UTAS from Sandy Bay to the Hobart CBD. There is widespread belief that his successor, VC Black, owed his appointment to his willingness to carry through on Rathjen’s plan (the selection process for VC Black will be discussed in a future post). Certainly, VC Black has carried on with Rathjen’s plan in a single-minded fashion, earning himself the nickname “no chance Black” because of his stated unwillingness to reconsider the Hobart CBD move, no matter what level of public opposition (and no matter what arguments) he encounters.

Premier Jeremy Rockliff now tells us that the Government has no control over UTAS, while Treasurer Michael Ferguson treats UTAS’ proposed CBD move as if it has derived sacred status through a paragraph in the Hobart City Deal (see section called Recent Statements by Premier Rockliff and Mr Ferguson below).

The reality is that there are means by which the Government could exercise control over UTAS (discussed in Recent Statements by Premier Rockliff and Mr Ferguson below). Moreover, does anyone really believe that UTAS could go ahead with the CBD move without, at least, the tacit support of Government?

Something has gone badly wrong.

In the remainder of this post, I will show that, even after the amendments of 2001 to 2012 were passed, strong links remained between UTAS and the Government and Parliament through, and under, the UTAS Act.

I will also show that, even as Parliament passed the 2012 amendment, Members of Parliament stressed the accountability of UTAS to the Parliament, and the need for UTAS to be transparent, with none stronger in expressing those laudable sentiments than then members of the Opposition, Michael Ferguson and Jeremy Rockliff.

I will then focus on the period 2013 to 2021 as a period of silence in the Parliament, when issues that should have been raised, and questions that should have been asked, were not; when all sense of UTAS’ accountability was lost, and Government and Parliament failed in their duty of providing accountability and transparency to the Tasmanian people.

I will then consider recent statements by Premier Rockliff and Treasurer Ferguson. These are a long way from their statements of 2012. They are also seriously wrong or misleading.

I will conclude with a final section on some other points that can be found in the debate around the 2012 amendment that make interesting reading in light of subsequent developments.

Links between UTAS and the Government and Parliament

These are the links that remained after the 2012 (most recent) amendment to the UTAS Act and which accordingly still pertain:

• UTAS is a public institution (statutory corporation), established under the UTAS Act.

• The UTAS Act is administered by the Minister for Education and the Department of Education (section 28 of the UTAS Act). Roger Jaensch is the current Minister for Education. Jeremy Rockliff was Minister for Education from 2014 to 2021.

• UTAS is required to seek the written approval of the Treasurer to borrow money (section 7(2) of the UTAS Act).

• UTAS is required to provide an annual report to the Minister for Education, for tabling in Parliament (section 12 of the UTAS Act). The requirement is weak, and I believe should have been strengthened in 2012, nevertheless it is a direct link from UTAS to the Parliament (see my LegCo submission, pp7, 11-12)

• The Minister for Education is responsible for appointing two members (out of a maximum of 14) to the UTAS Council (section 8(1)(d) of the UTAS Act).

• UTAS is covered by relevant state legislation including: the Right to Information Act 2009 (RTI Act), the Integrity Commission Act 2009 (IC Act) and the Public Interest Disclosures Act 2001. (See UTAS’ own paper on its regulatory obligations). Note that UTAS sought to have itself excluded from the IC Act in 2016.

• UTAS receives grant funding from the Tasmanian Government (and local government) ($24 million in 2021).

The 2012 amendment: emphasis on accountability in parliamentary debate

Background

The Hansard record of debates in the House of Assembly (HA) and the Legislative Council (LC) regarding the 2012 amendment are highly informative and readers may wish to consult them. I provide page references where relevant below.

As is clear from the debates, the 2012 amendment to the UTAS Act was largely based on recommendations from the then Chancellor of UTAS, Damian Bugg. The one exception to this was that Bugg sought a reduction in the number of UTAS Councillors appointed by the Minister for Education from four to either one or none. The Labor-Green Government had the amendment Bill drafted to retain two UTAS Councillors appointed by the Education Minster. The Shadow Minister for Education, Michael Ferguson, argued strongly that the Education Minister should retain the ability to appoint four UTAS Councillors, although the argument was not pressed to the point of voting against the Bill.

Major debate contributions in the HA include:

Nick McKim – Minister for Education and Skills

(from the second reading speech for the amendment)

“I would draw members’ attention to the preservation of the minister’s prerogative to appoint two members of the council. Not only does this provision reflect the establishment of the University of Tasmania under state legislation but the ongoing significance of the university for Tasmania’s economic, social and community good.” (HA, p61) [my bolding]

Michael Ferguson – Shadow Minister for Education

“This move [the decrease in the number of UTAS Councillors appointed by the Minister for Education from four to two] in itself represents a reduction in the real role and relevance of this parliament to guide the future development of the university it creates through this act. Let us not forget that if we are able to make any comparisons to private corporate structures, then this parliament represents the equivalent role of shareholder in trust for Tasmanians. That status ordinarily attracts the responsibility to elect its directors. However partisan the decisions of responsible ministers inevitably appear to the opposition at times or the public, I take this opportunity to make the point that the responsibility of a minister to make decisions such as appointments to university council are made only because of the implicit trust vested in that minister on behalf of the people of this state and this parliament. Despite the fact that I sit in opposition and our political opponents are in government, I nevertheless express a reservation that the bill diminishes the real role and relevance of this House of parliament to guide and support the future development of the university that it creates.” (HA, p66) [my bolding]

David O’Byrne – Minister for Health

“The state government has a role in considering the nature, the relevancy and the adequacy of regulatory and governance frameworks – those of UTas, the commonwealth and its own....Despite the changing university, there are essential differences between it and a corporation. Importantly, the act defines the members of the University of Tasmania as the students, graduates, academic and general staff and council members. As distinct from a commercial corporation entity owned by shareholders and governed by a shareholder-elected board, the members of the University of Tasmania are many and have diverse interests.” (HA, p71) [my bolding]

Jeremy Rockliff – Deputy Leader of the Opposition

“Our shadow spokesperson for education, Mr Ferguson, has very eloquently put our view on the matter.” (HA, p74)

.”…There are a lot of organisations that I am aware of in the not-for-profit sector, for example, that continually have to evolve their governance structures to keep up with the times, reflecting community attitudes, greater accountability and transparency….As the governing body for UTas, it is particularly important that the relationship between state government and the university remain very strong and relevant, and any assurances the minister can give in this area would be appreciated. Of course, I speak about the relevance of parliament
with respect to this act and I know the shadow minister for education raised that issue with you, minister….” (HA, p78) [my bolding]

Mr McKim

“I was approached by Mr Damian Bugg in relation to council’s desire to have its size reduced and I thought it appropriate to agree for the reasons I have articulated in my second reading speech. Also, I believe that if we were going to support these amendments to support the reduction in the size of the council it would be appropriate for a reduction in the number of ministerial appointments. I still say that it is important that we still retain two ministerial appointments because it is appropriate that the minister of the day have appointments to university council to augment the already very close relationship, not only between government and the university of Tasmania, but between this parliament and the University of Tasmania.” (HA, p81) [my bolding]

I will also make it really clear that I would not categorise what we are doing in this House as reviewing the act. I would categorise it as amending the act. I also want to be very clear that I would not categorise what I or the government did in developing these amendments as a review of the act. What I would categorise as a review normally would be a far broader process than we went through. We were responding specifically to requests made to me directly by the Chancellor. (HA, p85)

While the debate in the LC moved away from abstract conceptions of accountability to the need for links between UTAS and the Government and the Parliament, a number of acute and interesting comments were made (see examples).

Silence: the Government and Parliament 2013-2021

Background

Unfortunately, the admirable thoughts expressed in the Parliament in 2012 about UTAS’ accountability, and the need for transparency, to the Government, Parliament and Tasmanian people appear to have been immediately and entirely lost.

I have conducted extensive searches of Hansard for the period 2013 to early 2021. There appears to have been no discussion of UTAS’ accountability (or lack thereof) to the Government and Parliament in this period. Moreover, I can say with near certainty that UTAS’ proposed move from Sandy Bay to the Hobart CBD attracted no discussion until early this year.

On the basis of 154 pages of documents that I have received under the RTI Act from the Departments of Premier and Cabinet (DPAC), State Growth (DSG) and Education (DE), it also appears there was no formal discussion of UTAS’ plans within the Government, and certainly no serious independent analysis conducted by any of the three agencies on those plans, as might reasonably have been expected. Apart from the issue of how much funding might be provided by the State Government, it appears that whatever UTAS suggested was unquestioningly agreed. I have discussed these issues at length in my post RTI papers reveal Government left governing to UTAS. I also raised the issues in my letter of 27 September to the Secretary of DPAC, Jenny Gale, to which I am still awaiting a substantive answer.

Some key events

30 September 2016 – Premier Will Hodgman wrote to VC Rathjen affirming the Government’s in-principle support for UTAS’ proposal for a new STEM facility in the Hobart CBD (DPAC, Document 9). The same letter also suggests that Rathjen’s (and Premier Hodgman’s?) ambitions were already stretching considerably further, as Premier Hodgman stated:

“By replacing ageing current infrastructure, the project would also continue the University’s long-term strategy to invest in an expanded campus in the Hobart CBD, building a critical mass of research and teaching excellence while supporting the city’s revitalisation and growth.” (NB: the wording of Hodgman’s letter may indicate support dated from 2015, not 2016)

• I can find no evidence in documents obtained under the RTI Act that the Government had analysed UTAS’ STEM proposal.

During the period October 2016 to March 2017, it became clear to the Hobart City Council (HCC) that Rathjen’s plan was to relocate to the Hobart CBD, culminating in Lord Mayor Hickey expressing her complete support for this.

• While Rathjen’s plan must by now have been well known among politicians at various levels, and “political insiders”, there were no statements or questions in Parliament.
• By this time, I believe there should have been full transparency about what was going on and the HCC should have been consulting with ratepayers.

In July 2017, Rathjen was so emboldened in his plan to move to the Hobart CBD that he articulated it publicly, pre-empting any decision by the UTAS Council but also treating the issue as if was solely for UTAS to resolve (that is, with no involvement by the Government or the Parliament).

• With Rathjen’s ambitions fully on the table, and the Parliament being treated as irrelevant, again there were no statements or questions on the matter in Parliament.

On 5 April 2019, the UTAS formally decided, and announced its decision, to (very largely) relocate from the Sandy Bay campus to the Hobart CBD. By 2020 the UTAS leadership clique had also made it clear that they intended to redevelop the Sandy Bay site as a new suburb.

• Again, there were no statements by the Government and, quite remarkably given that UTAS’ decisions were now fully in the public domain, no questions asked by the Opposition or other members of Parliament.

What is to be made of this?

One really has to wonder how the Rathjen-Black plan to relocate UTAS to the Hobart CBD could go so unremarked in Parliament up to this year.

From the papers I have received under the RTI Act, it appears quite a lot was happening behind the scenes between the UTAS and Government. We have the Hodgman letter of November 2016 and in DPAC papers there is a telling reference in a brief prepared by DPAC for the Minister for Local Government for a meeting with VC Black on 30 September 2019:

• “Professor Rufus Black Presented on the Strategic Direction to Heads of Agencies in August 2019. He also meets with the Premier on a regular basis.” (DPAC Document 1)

There are no briefs for Heads of agencies for August 2019 or for the Premier for meetings with the VC in the documents provided to me by DPAC, DSG and DE. Perhaps agencies have failed to fully meet the legal requirements for disclosure under the RTI Act or perhaps the meetings were informal. Either way, it is reasonable to assume that meetings between the VC and Premier in particular were an established event, perhaps going back to Rathjen’s time, if not earlier. This may well explain the uncritical engagement of state agencies in the various committees involved in the Hobart City Deal.

However, it does not explain the silence of the Opposition and other parliamentarians from 2013 to 2022. Did they not notice what was going on with UTAS? Did they not care? Has the networking that I think we can safely assume UTAS has undertaken with the Government extended more widely throughout the Parliament?

Democracy dies in darkness

In researching this post, I came across these words by the late Dr Vanessa Goodwin (who spoke in the 2012 LC debate) in her inaugural speech to Parliament on 3 September 2009, which resonate strongly:

“As someone whose career has, until now, primarily been in aspects of justice, crime prevention and the law, I am particularly keen to see Tasmania return to being a place where trust is restored in government decision-making. Without transparency and accountability, no government can be truly legitimate.” (my bolding).

With the honourable exception of Cassy O’Connor and some members of the Legislative Council, there has been no commitment to transparency and accountability in the UTAS saga. The Government has let the people of Tasmania down, as have UTAS and the majority of parliamentarians to date.

Recent Statements by Premier Rockliff and Mr Ferguson

I believe that, in 2012, Michael Ferguson and Jeremy Rockliff accurately described the relationship that should apply between UTAS and the Government and the Parliament.

Premier Rockliff

In contrast, on 27 October 2022, following the use of similar words in correspondence signed by him, Premier Rockliff made the following statement in response to a question by Cassy O’Connor:

“To the question: the decision to relocate the southern UTAS campus and how that may align with the university’s educational priorities is a matter for the University of Tasmania as a private organisation. We support and encourage UTAS to continue to engage in a comprehensive and thorough consultation process. We encourage all those interested to participate in the consultation process through the established processes already in place under the planning system.

Since UTAS first announced its intentions in 2019, the Tasmanian Government has maintained visibility of its plans and progress through the Hobart City Deal, given the focus of city-shaping actions like transport, housing and precinct planning.

There is also now an inquiry into the provisions of the UTAS Act through the Legislative Council which can consider a wide range of UTAS activity. The Government will consider the outcomes from the inquiry in due course.”

On 8 November in response to questions again from Cassy O’Connor, Premier Rockliff stated:

“I believe, as with everything, that we need to move with the times and provide contemporary models of care within our health system and contemporary models of education, whether it be in our primary schools, high schools, our tertiary institutions or our highly valued public training provider, TasTAFE.

I am aware of the elector poll result in the Hobart City Council area on the UTAS move. The Government supports the university’s response, which was to withdraw the current planning amendment for the Sandy Bay site. The university has made it clear it will now work with the new Hobart City Council as the appropriate planning authority. The Government believes that a collaborative approach to find a sensible compromise is the best way forward for Hobart, the university and to ensure the continued delivery of high-quality education and research, which is what we all want.

I know there are some who think the Tasmanian Government should intervene in the university’s plans under the mistaken belief that we have a responsibility for the university. This is incorrect.“

There was then the following exchange:

“Ms O’Connor – They are administered by an act of this parliament.

Mr ROCKLIFF – The University of Tasmania is a statutory corporation governed by the University Council, not the state government. There are formal mechanisms for the public to engage with the university and the Hobart City Council to provide feedback and comment –

Ms O’Connor – Totally hands-off? You’re not worried?

…

Mr ROCKLIFF – on the university’s plans. The University of Tasmania has established the Shake Up, which is a panel of up to 80 members across the community to discuss the UTAS proposal.

The Legislative Council has established an inquiry into the University of Tasmania Act 1995 which will offer further opportunity for consultation on matters relating to the University of Tasmania’s future. The public is able to engage in this process as well. Any redevelopment plans the university chooses to pursue must also go through the regulated planning approvals process which allow for public consultation. We encourage those interested to participate in the consultation process available, including the established processes already in place under the planning system.”

Mr Ferguson

I have seen three letters from Mr Ferguson to correspondents on UTAS. He does not even concern himself with issues of accountability. This letter of 22 April is typical:

My comments on Premier Rockliff and Mr Ferguson’s claims

There is a lot wrong in Premier Rockliff and Mr Ferguson’s various statements. Here my concerns are UTAS’ relationship to the Government and the significance of the Hobart City Deal.

Government responsibility?

Regular readers will know that I consider Premier Rockliff misled Parliament on 27 October by referring to UTAS as “a private organisation.” He clearly sought to tidy up his language on 8 November, by describing UTAS as a “statutory corporation”, which is correct.

However, I believe that Mr Rockliff erred afresh on 8 November by saying that it was incorrect that the Government “has responsibility for the university.” While UTAS has been allowed to effectively become a law unto itself, ultimate control, and therefore responsibility, still rests with the Government and Parliament. I have outlined the legal connections between the Government and UTAS above. To take an extreme case, if UTAS was being run in a way that was manifestly crazy by the UTAS Council, the Government could seek to pass an amendment to the UTAS Act enabling it to replace the UTAS Council. As a more realistic example, if UTAS was seeking to borrow funds for activities outside its functions, the Government could simply deny approval. The Government could also, probably easily, amend the UTAS Act to require an Annual Report from UTAS worthy of the name, rather than the combination of glossy brochure and opaque financial statements that UTAS currently produces.

As I have also asked above, does anyone really believe that UTAS could go ahead with the CBD move without, at least, the tacit support of Government? I am sure that the Government could use informal mechanisms to persuade UTAS to drop its plan to move to the CBD, if it was so minded.

The Hobart City Deal

In my RTI application to the Departments of Premier and Cabinet, State Growth and Education on 4 May 2022, I specifically requested “All records relating to the inclusion of UTAS in the Hobart City Deal” (between 1 January 2015 and 4 May 2022).

The documents I have received do not support any suggestion by Mr Ferguson that there has been a considered process by the State Government (either by way of Cabinet Submission or Ministerial brief) for the inclusion of first a new STEM facility and, more recently, relocation of UTAS in the Hobart City Deal. This makes Michael Ferguson’s claim not only appear hollow, but negligent.

Once again, it is possible that agencies have failed to deliver on their legal obligations for disclosure under the RTI Act, However, based on my reading of the documents I have, I believe the more likely scenario is that UTAS has merely had to say what it intends to do and the Government has unquestioningly accepted this (with the possible exception of considering what it might provide by way of funding).

I believe, putting aside the dreadful jargon, that Mr Rockliff’s statement, “Since UTAS first announced its intentions in 2019, the Tasmanian Government has maintained visibility of its plans and progress through the Hobart City Deal,” is an accurate depiction of the situation. This amounts to a statement that the Government knows what is going on with UTAS because of involvement in Hobart City Deal committees. – that it is an (acquiescent) spectator.

On the true test of the significance of relocation of UTAS to the Hobart CBD in the Hobart City Deal – funding commitments – there does not appear to be anything currently on the table.

There is absolutely no commitment of Commonwealth funding to UTAS in the Hobart City Deal. Infrastructure Australia’s vapid evaluation of UTAS’ STEM proposal, while positive, in no way represents a Commonwealth Government commitment and no funding has been scheduled in the budget out-years.

I leave it to the State Government to say whether it has committed funding and whether, if no funding is committed by the Commonwealth, this commitment will stand.

Other interesting aspects of the 2012 Debate

Chancellor Damian Bugg made it clear in briefings to parliamentarians ahead of the amendment debate that one of the reasons he was seeking to streamline the UTAS Council from 18 to 17 members was so it could meet monthly (11 meetings a year) rather than just seven times a year (see especially LC, p46, but also LC, p31 and HA, p71 – the argument was clearly influential). The UTAS Council meets only seven times a year.

• Not only has one of Bugg’s rationale for changes in the Council been completely forgotten, but I observe that generally the less often a governing body meets, the easier it is for a CEO, and a supportive management team, to exert influence and control.

Chancellor Bugg also made it clear in briefings that it took about six months for new members of the UTAS to come up to speed (see especially LC, p36, but also pp64, 66, 76-77, 81).

• As I have previously suggested, this makes it shocking, if not scandalous, that four members of the 14 person UTAS Council who voted for the Hobart CBD move on 5 April 2019 – probably the most important decision in UTAS’ history – were only appointed in January and February 2019 (see my LegCo submission, pp9-10).

Here are two more choice quotes from Michael Ferguson in 2012 to conclude:

“Something that is unusual for a university,,,[UTAS] boasts the full spectrum of study disciplines, which is very impressive and something that would cause all members here to be proud.” (HA, p63)

• While it is not entirely true that UTAS had the full range of study disciplines in 2012, the number of study disciplines has been much reduced since. It would be interesting to know Mr Ferguson’s views on this.

“Mr Eslake also notes that productivity could be substantially lifted if we increased our year 12 completion rates. That is essential because our year 12 completion rates are the lowest of any state in Australia – to the everlasting shame of this government after 14 years.” (HA, p64)

• This is one of the nubs of the student accessibility issue; not the two bus issue (I will focus on the student accessibility issue in a future post).