Frequently Asked Questions
About the University
The University of Sydney Act 1989
(a) The University of Sydney as a legal entity
The University of Sydney was established in 1851 by Act 14 Vic No 31 and is a statutory corporation under The University of Sydney Act, 1989 (as amended). The University should be described as 'The University of Sydney' on all legal documents together with its ABN which is 15 211 513 464.
Pursuant to sub-section 6(1) of the Act, the objects of the University are the promotion, within the limits of the University's resources, of scholarship, research, free enquiry, the interaction of research and teaching, and academic excellence.
Under the Act, the University may exercise commercial functions comprising the commercial exploitation or development of any facility, resource or property of the University or in which the University has a right or interest, whether alone or with others, for the benefit of the University. University commercial activities are distinct, however, from the University's principal function which is the promotion of its objects under the Act.
The Act makes provision for Guidelines to be approved requiring specified processes and procedures to be followed in connection with University commercial activities. These Guidelines apply to commercial activities in which the University or controlled entities of the University participate.
(b) The role of Senate
Senate is the governing authority of the University and has the functions conferred or imposed on it by or under the Act.
The functions of Senate (as set out in section 16 of the Act) are to act for and on behalf of the University in the exercise of the University's functions. The Senate's role is to control and manage the affairs and concerns of the University and act in all matters concerning the University in a manner calculated to promote the object and interests of the University.
Senate has the power, under section 17 of the Act, to delegate any or all of its functions in relation to any matter or class of matters, or in relation to any activity or function of the University - see Delegations of Authority - Administrative Functions. The Act does not permit sub-delegation of authority.
Senate may, under section 36 of the Act, make by-laws, not inconsistent with the Act, in relation to any matter that is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the Act. These by-laws may empower any authority (including the Senate) or officer of the University to make rules (not inconsistent with the Act or the by-laws) for or with respect to any or all of the matters about which by-laws may be made, subject to a number of exceptions which are set out in section 37 of the Act.
Current by-laws and rules can be found in the University Calendar at http://www.usyd.edu.au/calendar/
Other key legislation
(a) HESA
In 2002, the Commonwealth Government conducted a review of Australia's higher education system. The Government's response to the Review was announced on 13 May 2003 and resulted in the Higher Education Support Act 2003 (Cwth) ("HESA") being enacted.
HESA, through the Guidelines for Commonwealth Grant Scheme, makes eligibility for additional Commonwealth funding to higher education providers contingent on the higher education provider being able to demonstrate compliance with a set of specific governance related criteria: the National Governance Protocols ("the Protocols").
The Protocols have resulted in a number of changes to the obligations of Senate, including by specifying certain duties for fellows of Senate (see Schedule 2A of the Act). The Protocols address such issues as governance, delegations of authority, codification of internal grievance procedures, content of the University's annual report, risk management within the University, risk assessment of part ownership of external entities and reporting requirements in relation to controlled entities.
The University is required to formally certify compliance with the Protocols on an annual basis. As a result of HESA and the Protocols there is a strong emphasise throughout the University on good governance.
(b) HEWRRs
The University's eligibility for additional Commonwealth funding as a higher education provider is also contingent on compliance with the Federal Government's Higher Education Workplace Relations Requirements (HEWRRs). HEWRRs place particular emphasise on:
providing choice in agreement making, including the use of individual Australian Workplace Agreements;
promoting workplace flexibility; and
implementing robust performance and development strategies.
(c) Charitable fundraising and tax deductible status
Under the Laws of New South Wales, the University is constituted for a charitable purpose and is therefore able to carry out charitable appeals.
Donations ($2 and over) to the University may be claimed as tax deductions as the University has been endorsed by the Australian Taxation Office as a deductible gift recipient for Australian income tax purposes.
(d) Trade Practices law
The University's trading activities are sufficient to constitute a trading corporation within the meaning of the Trade Practices Act, 1974 (Cth) and the University is therefore subject to the provisions of that Act in relation to its business activities in a similar manner to corporations.
Sub-sections of the University and controlled entities
All faculties, departments, schools, foundations, centres and some institutes of the University are part of the University, as are bodies that have amalgamated with the University, such as the Sydney Conservatorium of Music and Sydney College of the Arts. These bodies do not have a legal identity separate from that of the University.
The following societies have been established by resolution of Senate. They are governed by their respective constitutions (subject to the applicable Senate resolution) and are considered to be unincorporated associations.
- The University of Sydney Union
- The Students' Representative Council ('SRC')
- The Sydney University Postgraduate Representative Association ('SUPRA')
- Sydney University Sport
- The Cumberland Student Guild; and
- The Student Association of the Sydney College of the Arts
Other entities which are also connected with the University do have separate legal status, such as joint ventures, cooperative research centres ('CRCs') and some institutes.
As a statutory body, the University is subject to a number of other state and federal laws including:
- Public Finance and Audit Act 1984
- Annual Reports (Statutory Bodies) Act 1984
- Ombudsman Act 1974
- Freedom of Information Act 1984
- State Records Act 1998
- Independent Commission Against Corruption Act 1988
- Privacy and Personal Information Protection Act 1998
- Federal and state anti-discrimination laws
- Workplace Relations Act 1996
Legal Professional Privilege
"Legal professional privilege" is intended to preserve the confidentiality of communications between a lawyer and a client. Ordinarily, parties to legal proceedings are required to disclose to other parties and the court all documents in their possession, power and control which are relevant to a matter in issue in the proceedings. All types of documents must be disclosed, whether they are in electronic or hard copy, hand-written or typed, including internal and external correspondence (emails, letters, memorandums and faxes), notes of meetings, phone calls or conversations, discussion notes, briefing papers, minutes and any drafts of any of these documents. However, if "legal professional privilege" attaches to a document, the document does not have to be produced in connection with legal proceedings, or in other circumstances, such as on receipt of a search warrant from the police or a mandatory notice for production from a regulator.
Communications between a client and a lawyer which are made for the dominant purpose of giving or obtaining legal advice or in connection with existing or anticipated legal proceedings generally attract "legal professional privilege", so long as the communications are confidential and the lawyer is acting in his or her capacity as a lawyer.
Marking a document as "privileged and confidential" is not sufficient. The document must also be treated as confidential if privilege is to be maintained. "Legal professional privilege" can easily be waived if communications to and from lawyers are not treated with care. If privilege is waived it means the document is no longer protected and would need to be disclosed in connection with legal proceedings. Once waiver has occurred it cannot be retrieved. Following are some guidelines for ensuring "legal professional privilege" is maintained in communications with the OGC:
- All requests for legal advice must be made in writing;
- all communications to the OGC should be marked "confidential" and communications from the OGC will be marked "privileged and confidential";
- communications containing or relating to legal advice should be copied or forwarded only to persons within the University who are directly concerned with the issue the subject of the legal advice;
- communications containing or relating to legal advice should never be copied or forwarded to anyone outside of the University without first seeking the consent of the OGC;
- any legal advice that is copied or forwarded to third parties should be sent "as is" and not with any comments about or summary of the legal advice;
- all communications with external solicitors must go through the OGC; and
- the conclusions or essence of legal advice obtained from the OGC or from external solicitors should not be referred to or commented on in separate communications with third parties.
Maintaining "legal professional privilege" is an important issue for the University. Challenging another party's assertion that a document is privileged can be used by a party to legal proceedings as a tool to gain a strategic advantage. If a party does not adequately protect its "legal professional privilege" it can be detrimental to its prospects of success in legal proceedings.
Please contact the OGC if you have any queries in relation to handling legal advice.
Privacy, Freedom of Information and Copyright
Inquiries concerning privacy and Freedom of Information (FOI) requests should be directed to the University's Privacy and FOI Officer, Mr Tim Robinson.
The University has executed licences with Copyright Agency Limited and Screenrights under the statutory licensing scheme regulated by Part VA of the Copyright Act 1968 (Cwth). The licences allow the University to make copies of copyright works for educational purposes. The licences also require the University to participate in surveys on certain material and records must be retained to ensure the University is able to respond appropriately.
The University is also a party to a commercial licence with the Australian Mechanical Copyright Owners Society ('AMCOS'), Australasian Performing Right Association ('APRA'), Phonographic Performance Company of Australia ('PPCA'), and the Australian Record Industry Association ('ARIA') which allow limited copying and communication of music material.
Further details about these licences and the University's obligations are available at the Library's website: http://www.library.usyd.edu.au/about/
Queries regarding copyright should be directed to the University's Copyright Compliance Officer (and Music Survey Manger).
Subpoenas
A subpoena is an order from a court, tribunal (or certain other bodies) requiring the party named in the subpoena to:
- attend the court or tribunal to give oral evidence; and/or
- produce a document, documents or other evidence to the court or tribunal.
To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence.
To the extent that a subpoena requires the addressee to produce a document, documents or evidence, it is called a subpoena to produce.
A subpoena must be complied with within the time frame specified in the subpoena. Not complying with a subpoena constitutes contempt of court, unless the recipient party successfully applies to have the subpoena set aside.
The University receives subpoenas from time to time that require it to produce documents. The OGC accepts service of subpoenas to produce on behalf of the University. Any subpoena to produce which is served on the University but not on the OGC must be immediately sent to the OGC to ensure that University procedures are followed in relation to it.
The OGC cannot accept service of subpoenas to attend to give evidence as such subpoenas must be served directly on the individual called upon to give evidence. To the extent that a subpoena to attend to give evidence is served on an individual within the University, and is relevant to the University, the individual should immediately contact the OGC for advice and assistance in relation to the subpoena.