Towards Open and Ethical University Governance NTEU discussion paper August 2017 1. Overview This discussion paper has been prepared to support the implementation of the 2016 National Council1 motion, Accountability of University Councils, which asked for “a report on the varying practices of universities and the impact upon the quality of university governance and their obligations under the university Acts, as well as to the broader community.” The discussion paper outlines the experiences of NTEU staff members on university council/governing bodies, the current extent of external and private sector representation on these bodies, and the character of legislative reform undertaken in Australia since 1988. The discussion paper demonstrates that systematic ‘reform’, over recent decades, has sought to reduce elected staff and student representation on university governing bodies. These measures are fundamental not only to the concentration of governance decision-making in the university executive but to the removal of openness, transparency and accountability in university decision-making and operations. As part of an array of measures necessary to reverse this trend, the NTEU has developed a draft NTEU Code of Open and Ethical University Governance. Its purpose is to articulate a clear set of principles that protect the distinctive character of Australian universities as public institutions. 2. Staff experiences of University Councils/Governing Bodies In September 2016, the NTEU settled a Federal Court case at the University of New England, where Professor Margaret Sims was accused in February 2015 of having a standing conflict of interest by holding both union and council positions.2 Professor Sims was already the staff- elected representative on council when elected the NTEU Branch President. Significantly, she was re-elected as staff representative on council while the dispute was in progress. While the joint statement released on 30 September 2016 settled that there was no apparent conflict of interest in holding both positions, the case highlighted the extent of secrecy and lack of transparency currently on university councils. Concerns were reinforced by responses collected through an evaluation survey circulated on 21 September 2016 for an NTEU workshop for university council members who were also NTEU members.3 The survey attracted 22 responses (61% of attendees). Responses from the survey highlighted the following key concerns about governance arrangements at the relevant institution: that lack of transparency and accountability in governance protocols was common; 1 NTEU National Council, https://www.nteu.org.au/myunion/about_us/national_council 2 Andrew MacDonald (2017) “Union claims win in conflict of interest case at University of New England”, http://www.nteu.org.au/article/Union-claims-win-in-conflict-of-interest-case-at-University-of-New-England-19070 3 Jeannie Rea (2016) “Union members on university councils,” Advocate, Vol.23, No.3, 22. 1 that ‘conflict of interest’ assumptions limit legitimate questions made by elected staff seeking to address issues of poor governance; that most council leaders exert pressure on individual members to conform to council decisions; that staff often feel isolated and there is benefit in building networks amongst union aligned council members; that there is a role for legal and procedural skills in holding management to account during council meetings; and that university council meetings present a unique opportunity to present the best interests of the university from a staff perspective, although in numerous instances this opportunity is only just being recognised by NTEU members. Lack of transparency in Council procedures Specific responses to the evaluation survey reinforced the prevalence of secrecy and lack of transparency in university council meetings and processes: 75% said either the council agenda, papers or minutes were not entirely available to staff members. In a few instances, the agenda itself was not available. In other instances, minutes were redacted or presented as summaries, and sometimes took long periods before they became public. 37% said Council meetings were not open to observers. When observers were allowed, this was generally at the discretion of the Chancellor and they would be excluded for confidential matters. In some instances, only invited presentations or staff at specific levels were able to observe meeting proceedings. 61% stated they could not report on council business to staff. There was significant variation across responses in relation to what could not be reported on. In most instances, commercial-in-confidence or highly sensitive matters could not be reported. In some instances, restricted subject matter extended well beyond commercial-in- confidence matters. 38% said they were encouraged to communicate with other council members outside of council meetings. The majority of comments reflected that NTEU members were neither encouraged nor discouraged, however, a handful outlined they were discouraged from engaging with other council members, either by the assignment of a mentor or through the direct intervention of the Chancellor. 94% received an induction, although 76% said they did not receive training on meeting procedure. Some reported being intimidated by the Vice Chancellor or discouraged from meeting with other Councillors at induction. Some described their induction experience as limited to reading council papers and not about meeting procedure or analysing financial documents. 58% said they were encouraged to nominate for committees of council. Comments reinforced that there was a wide variety of responses in terms of committee participation, with staff participation common in some instances, and discouraged in others. Following this survey, the NTEU consulted further with workshop participants and NTEU staff. These discussions highlighted that: At some universities the council agenda was divided into a ‘confidential’ and ‘non- confidential’ list of items. Important matters were concealed from broader scrutiny by simply being added to the confidential items; 2 Union members were commonly discriminated against by not being allowed to join council committees or sub-committees where important assessments and decisions were made; Minutes were not recorded for Committee and sub-committee meetings at some institutions and therefore were not properly accountable to the governing body, let alone the public; Council members often do not have a publicly-listed email address and therefore are not accountable to any stakeholder, irrespective of whether they are staff, students, the local community or the wider public. This includes Minister-appointed (external) governing body members who often have no formal means of contact or correspondence with the wider public. Feedback to the evaluation survey and other correspondence does not reflect governance practices at all Australian universities. But the existence of these practices in numerous places across the sector demonstrate the regulatory burden in relation to university governance is fragile and that non-transparent practices and committee cultures have demonstrably been able to flourish. 3. Changing role of University Councils/Governing Bodies Governing body structures and practices are routinely influenced by binding legal instruments including their enabling legislation, Commonwealth funding legislation, State/Territory general legislation, corporations’ law, and other local factors that influence operations. For instance, universities are subject to legislation that empowers state and Federal audit bodies to make financial assessments of public institutions, as well as state legislation that regulates against improper conduct and corruption at universities. This includes the Crime and Corruption Commission in Qld (which found the UQ vice-chancellor culpable of corruption in 2013), 4 and the WA Crime and Corruption Commission (which found the Murdoch University chancellor responsible for improper conduct in 2016).5 Nonetheless, university governance has been subject to structural and economic changes larger than the traditional dichotomy between “internal estates and state level regulation”.6 A key role for university councils/governing bodies is to make decisions on increasingly complex internal and external dimensions of institutional governance. The 2013 Review of Higher Education Regulation report, which depicts modern university governing bodies as covering interlocking ‘regulatory forces’, extending from legislation to market incentives, and from local to global pressures. These include the student demand-driven system (DDS) for CSPs (Commonwealth-Supported Places), competitive grants, performance-based research funding, state-based, national and international quality assurance, along with market pressures such as the competition for international students and emerging online learning markets.7 The role of individual university councillors sit amidst forces which have effectively inserted “non-academic interests into the heart of education, adding layers of external 4 Crime and Corruption Commission (Qld) (2013) An examination of suspected official misconduct at the University of Queensland, http://www.ccc.qld.gov.au/research-and-publications/publications/misconduct/uq/an-examination-of- suspected-official-misconduct-at-the-university-of-queensland 5 WA Crime and Corruption Commission (2016) Report on a Matter of Governance at Murdoch University, https://www.ccc.wa.gov.au/sites/default/files/Report%20on%20a%20matter%20of%20governance%20at%20Murdoch