The University Visitor: a Guest from Another

George Szlawskl even the heightened participation rates since 1945 10. R. Over, "Women Academics in Australian Universi THE UNIVERSITY VISITOR: ties", Australian Journal of Education, 25, 2, 1981, Senior Industrial Officer have not brought the same improvement to the A GUEST FROM ANOTHER Health Commission of Victoria status of women in society at large. p. 170. (Formerly FAUSA Industrial Officer) References 11. ibid., p. 170. AGE 1. Cited in E. Byrne, Women and Education, Tavistack, London, 1978, p. 11. 12. ibid., p. 174. 2. Sydney URiversity Union, Recorder, July 1982. 13. Enrolments, all degrees: Australian universities, being largely modelled on ment in the Court of Kings Bench but which was 1950 1960 1970 1980 their British counterparts, have in the majority of subsequently approved by the House of Lords 3. E. Boehm, Twentieth Century Economic Develop 24,224 41,836 108,906 151,238 cases acquired the office of University Visitor. The when reversing the judgement of that Court, stated: ment in Australia, Longman, 1971. ASS University Statistics, 1950-1980. purpose of this paper is to examine the need, the The office of Visitor by the common law is to 4. ibid. implications and the extent of recourse to the Visitor 14. ibid., 1961, 1980. in Australian universities so that an opinion can be judge according to the statutes of the cof/ege and to expel and deprive upon just occasions 5. 1945 figures are excluded from the long term compari formed about the usefulness of this office. and to hear appeals of course. And from him sons because of the relative absence of men in and him only the party grieved ought to have wartime. 15 Table a HISTORICAL BACKGROUNO Teaching and Research Staff, Universities redress; and in him the founder hath reposed The function had its origins in the remote pastas an so entire confidence that he wif/ administer 6. J. Jones and F. Lovejoy, ''The perceived role of Austral Males Females essential ingredient of the Constitutions of eleemo ian female academics", The ANZ Journal of Socio justice impartially that his determinations are Tutors etc. Total synary institutions which appear to be one of the logy, 16, 1980, pp. 97, 98. Tutors Total final and examinable in no other Court Male Siaff Female Staff earliest examples of corporate identities. The dis whatsoever. J 7. Sydney University does not have figures for male/fe No. % No. % No % No % tinction between eleemosynary and other types of In substance the English Courts still follow the male honours degrees until 1980. 1961 301 10.2 2,952 100 187 46_7 400 100 corporations was succinctly summarised by Shel gravemen of that statement. In more recent times 1964 501 12.3 4,063 100 245 42.8 574 100 ford in his Law of Mortmain1 as follows: the law pertaining to Visitors was consolidated and 1970 793 12.5 6,366 100 398 39_7 1,002 100 8. J. O'Neill, "Women in Biological Sciences in Victorian enlarged upon by Sir Richard Kingersly VC. in the Universities in 1981: An attempt at Perspectives", 1980 770 8.6 8,983 100 534 30.7 1,739 100 Lay corporations are again subdivided into ANZAAS paper, May 1982, is a recent study confirm Source: ASS University Statistics, 1963, 1964, 1970, 1980 two classes, eleemosynary and civil, Eleemo case of Thomson and University of London.4 ing this. synary corporations are such as are consti Whatever relates to the internal arrangements 16. Melbourne University, Sectional Report No.3, 1980: tuted for the perpetual distribution of the free and dealings with regard to the government 9. ABS, University Statistics 1950-1980, AGPS, Canberra. "Women Academics in the University, 1974-79". alms, or bounty of the founder of them, to and management of the house, of the domus, such persons as he has directed. These are of of the institutions is properly within the juris two general descriptions; hospitals for the diction of the Visitor, and orlly under the juris maintenance and relief of poor and impotent diction of the Visitor and this Court will not persons,' and colleges for the promotion of intervene in those matters; but when it comes learning, and the support of persons engaged to a question of right of property, or rights as in literary pursuits; of which the greater between the University and a third person number are within the Universities, being cor dehors the University, or with regard, it may porations within a corporation of which they be, to a breach of trust committed by the form a component part; and other colleges corporation that is the University, and so on, are out of the Universities and are not neces or any contracts by the corporation, not being sarily connected with them. matters relating to the mere management and arrangement and details of their domus then It is unclear exactly when the divisions between indeed this Court wifl interfere,S various corporations occurred but the differences were well established in England at the beginning of From these two quotations, but especially from the the 19th century so that ecclesiastical and eleemo latter, a number of conclusions can be drawn about synary corporations were subject to visitation the extent of the visitorial jurisdiction before the whereas other lay corporations were not. A further beginning of the 20th century. difference that can be observed between the two • In the beginning, only a member of the corpora kinds of corporations subject to the Visitor's juris tion can instigate a complaint orappeal, Thus, in the diction can be seen in the type of a person first instance, the jurisdiction of the Visitor is con appointed to that office, Whereas the ecclesiastical fined to questions arising between members of the corporations followed theestablished hierarchy, the corporation and cannot be invoked in any disputes eleemosynary corporations left the identity of the arising between corporations and non-corpora Visitor up to the legislator who passed the enabling tions. This is established Jaw and is stated, among legislation. others, by Bridge. 6 This is but a brief historical outline of the rise of the Visitorial jurisdiction is therefore essentially visitorial jurisdiction. Any such historical synopsis limited to corporations and does not extend to would be incomplete, however, without a review of other persons within or outside the corpora the early cases which shaped the extent of the Vis tion. itor's Office. Thus, for example, a dispute between a laboratory One of the earliest cases to define the powers of a technician and the university that employs him can Visitor was Phillips and Bury.2Sir John Holt J.e., in a not be settled by a Visitor but recourse must be judgement which was actually a dissenting judge- made to the appropriate court.7 20 21 To avoid misunderstandings it must be made clear Such are the limits of the Visitor's jurisdiction as a Section 30 provides for a Visitor along the same ® Oeakin University that the rule that the Visitor's functions can only be result of the historical formulations of the office and lines as the University of Sydney Act. Enabling Act; Deakin University Act, 1974. involved in questions between corporators, does the early cases fleshing out its duties. Since then, not exclude the exercise of his or her jurisdiction in we have seen a number of changes in the nature \9 University of New England Section 3(2) incorporates the University. Section cases where corporators challenge their expulsion and the method of definition of the office in Enabling Act; University of New England Act of 3(1) provides that the University shall consist of from the corporation, as where a member of aca Australia. 1953. such members of academic staff as may be pre demic staff questions the right or the justice to expel scribed. Section 38 provides for a Visitor. or remove them from the position which would The Visitor's Office in Australian Universities Section 4(3) provides incorporation for the Univer make them a corporator; fortheir status as a corpor A brief outline of the relevant legislation is provided sity, Section 15(1), includes academic staff as South Australia ator is then at issue. Conversely, it is within the for all Australian universities. As the matter of corpo members of the Convocation. * University of Adelaide Visitor's jurisdiction to determine whether an appli rate identity and the extent to which members of Enabling Act: University of Adelaide Act, 1971-1978. cation to gain corporate status has been wrongly academic staff are corporators is important, these There is no specific provision for a Visitor in the This Act repealed the previous Act of the same sections are included as well. Enabling Act but specific persons are mentioned as name which was in force from 1935-1964. rejected. Hence one of the functions of the Visitor is s to decide all questions of disputed membership of University Ombudsmen in the list of apPointments. New South Wales It is interesting to note that in the 1980 CalendarSlthe Section 4(1) provides for a continuation of the Uni the corporation. • University of Sydney Governor of New South Wales is mentioned as the versity being a body corporate. Pursuant to section • The Visitor exercises a special jurisdiction over all Enabling Act; the University and University Col Visitor under the section headed Officers and Staff 18, the Senate is established which includes all private disputes within the corporation according to leges Act of 1900 which was enacted pursuant to a of the University. In 1980, as today, no specific graduates of the University and all persons in full the special statutes and code of law governing the Royal Charter of the University of Sydney dated 27 enactment was provided for the Visitor in the ena time employment who are graduates of other uni corporation.

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