Senate Education and Employment Legislation Committee [Part 2], , 3:00:58 to 3:13:25
Senators challenge TEQSA's role in delaying the ANU's chancellor selection process and the nature of voluntary undertakings by the university.
Topics: Education, Integrity
Speakers: Dr Mary Russell, Senator Paul Scarr, Unknown Speaker, Speaker 2
>> Uh thanks very much. I my questions uh Dr. Russell really come to powers uh and uh I didn't have the benefit of being uh at the last estimates in relation to this debate around powers but I've certainly been following it uh in terms of some of the commentary. Uh so as I understand it uh and just correct me if I'm wrong in terms of my summary of where we got to in the last estimates um TEX intervened in relation to the governance of AU to initially delay a selection process for a new chancellor. Is that correct?
>> Um TEXA did not impose a delay um on the A&U. We spoke to the ANU um um through the chancellor and with the council um about um the risks that would be posed to a selection process were it to proceed while there were live and serious governance issues um that were subject to a compliance assessment and in the first instance um the A&U um council absolutely agreed to delay that process.
>> Okay. So look, I could go through a heap a shopping list of points in this regard and I suspect we're going to have the same toing and throwing. Um there is a point in time uh in terms of engagement between a regulator and the entity that's being regulated or in a contractual relationship uh or any other legal relationship where the characterization of a voluntary agreement uh or someone uh conceding that they're going to do something uh when they're requested to uh changes its character. from being voluntary, as it would usually be known, to being a decision that's made under duress, uh, from a a legal point of view sometimes, or coercion or some sort of unlawful conduct, um, where the party that's being asked to do something feels as if they're over a barrel. Uh I can remember a an unfair dismissal case I once had years decades ago where the commissioner referred to well he resigned but he was given a gun and told to do the honorable thing right. Um those are the sorts of examples uh where something which has initially been uh said to be voluntary isn't really voluntary and and if it was subject to a legal examination it could well be struck out as being something that was abuse of power beyond power. Uh my blunt question is did Texa act unlawfully when it intervened in the a new chancellor selection process the way it did?
>> No senator and I will um make a couple of relevant comments. First of all, the um impetus for um uh moving to discussion about a voluntary undertaking was the A&U council was concerned that with the passage of time um there was increasingly little opportunity to run a selection process for the chancellor before the scheduled um end of then Chancellor Bishop's um term which is um December. And they had anticipated that a period of 12 months would be needed to to run that process. So um we um uh entered discussions with the ANU um around whether it was possible to um meet that need as they saw it to move forward with the selection process but with sufficient guard rails in place um to um to deal with the risks that would arise in terms of trust and confidence um or any subsequent findings in relation to um to governance issues and problems. Okay. I would may may I also say though that um I think an important characteristic of the of the process is that um after those discussions when the A&U were um council was considering whether to um uh enter into or to offer the voluntary undertaking. Um there was a period of quite some days when they I understand there were many um briefings of council members. there were opportunity for council members to talk amongst themselves to meet um uh with the um then pro-chancellor um and before um ultimately conducting a voting process. So I think the fact that um they held that um the um document they were considering did not predetermine um council nominees that would be part of that process. I think those characteristics of those process um uh uh align with a voluntary undertaking to meet a set of circumstances rather than a coercive circumstance.
>> Okay. Who actually asked for the delay in terms of the process?
>> It it uh sorry delay in the period of days that the A&U considered the um
>> was it
>> the text of the undertaking? Oh, that was um uh Dr. Marshall who was the pro-chancellor said that that was what the council would require to properly um
>> But the initial delay in terms of the
>> that was a matter that um um I raised in discussion and um we had some discussion um and correspondence to and fro with Chancellor Bishop.
So you're so you raised initially the request to delay the process of
appointment. I think there was a council meeting that where I was invited to attend where it was raised as a question of you know we would normally conduct this process but we're in the middle of a compliance assessment you know what are the issues involved in that and we discussed the risks that would arise if if a council were to enter into that process or lead that process um including the risk to their loss of um confidence and social license with their community. Um so we expressed a view about some of those risks. Um and at that time it was there was no pressure of time that meant it had to go ahead quickly. Um but subsequently there was and so we um reentered discussions with the AU about that.
>> So I was so this discussion occurred. You were there. Was anyone else there from TEXA?
>> Uh Mr. Allman-Payne was at the council meeting. >> Oh thank you Paul. >> sorry. Was it a formal meeting of council?
>> It's hard to know Dr. Russell the dynamics of the meeting without being there and there are different ways in which that meeting could occur. Uh you referred to the it was a discussion. uh but without knowing who said what when uh it's difficult to to to really understand what the dynamic was in uh people's um understanding with respect to whether or not pressure was being applied. Do you understand what I mean?
>> Yes, perhaps I can assist. So um at that meeting part of the discussion was that um should the council wish to do so um we could enter into discussion with them about um a set of arrangements that would enable a process to go forward to. At that time at that meeting the council had no appetite to do so and that that issue then remained silent for quite some months um until it was raised
did you obtain legal advice at any stage of the process? At what stages of these processes did tex or obtain legal advice and if so, from whom?
>> Um, as you know, Senator, you we have responsibilities to act in accordance with the TEXA act and so we are always mindful um and cognizant um of what our obligations are and what the um extents and and requirements of our powers are. So that is just normal BAU for us.
>> So but could you please answer the question? Did you when did you obtain legal advice and uh from whom?
>> I think the matter in relation to the um appointment process was a matter of internal discussion with our um you know our our various regulatory staff. Um I don't recall any legal advice in relation to um uh that process.
>> Okay. So you didn't obtain legal advice?
I cannot recall doing so.
>> Have you obtained legal advice
>> Excuse me for one moment please. So um Senator um as I said before that matter was matter you know managed internally. So there were discussions with our internal legal team but in relation to that um and the voluntary undertaking there was no external legal advice.
>> Okay. So you only obtained legal advice internally. Yes. From a general counsel.
>> Yeah we have a legal team and a general
>> Can you just on notice can you please provide the dates on which that legal advice was provided and at what stages that legal advice was provided? and and and one of the things I'm interested in um and even before joining this committee I I I read some of the commentary with respect to the legal advice which the au obtained uh from a leading national law firm and of course they had some extremely eminent jurists uh on the on the council as well who provided opinions as to uh whether or not what Texa did and I think I'm using the term that was used in the article whether or not it constituted constituted an abusive process uh and whether or not Texer actually had the legislative basis for um taking the action which it took. I would have thought if I were in your position and I saw that I would really consider very carefully going externally and getting the best legal advice I could possibly get. um even Australian government solicitor or or whomever. So I how do you how do you why didn't you do that?
>> Senator, if um if you read the piece that I recall um that canvas that which I think may have been in the Saturday paper, um I remember it being framed in terms of um if TEXA were to take this were to require this as a matter of conditions um and that is not the case. um the um the uh process for selection was dealt with um under a voluntary undertaking. >> So that's a a fundamental difference um and it you know we didn't take advice about something that that didn't happen.
>> Well Dr. Russell, we then go into the realms of what is a voluntary condition and again we're into the realms of coercion, duress, how voluntary was the consent really and I do know and perhaps the chair's got to rotate the call. Uh I note that um someone I have a very high regard of um is the chancellor of my old university uh Peter Bug. uh and he's come out publicly and raised concerns about intervention in relation to the internal governance of a university. How do you respond to his concerns? I
>> I found um uh Mr. Viz's comments really interesting because I think that they canvased what should happen in normal circumstances which is when there are issues and problems with governance. There should be sufficient protections and um uh strength and depth of governance that they are corrected internally um that they are informed and corrected by you know periodic external review and advice. where he um failed to explore the issues was what happens when those things fail. Um and um that's a different set of circumstances which is one which does require um um involvement from the regulator.
>> Okay. Well, I note that she needs to circulate the call. Thanks.
>> Thank you, Dr. Russell. Um Senator Pok,