This book is the first in Australia dedicated to the legal environment of our universities. The law both drives and governs the evolution of Australia’s strong and vibrant system of higher education. Here, experts explore a wide range of areas of topical and salient interest, providing a comprehensive resource for those both within and outside the sector, including managers, governors, academics, legal practitioners and all who have an interest in the impact of the law on its operations.
While their primary function today remains the provision of higher education and research, Australia’s universities are now large commercial global corporations. Their operations involve the management of a diverse range of relationships, both internal and external, and the law plays a central role in these. Higher Education and the Law first considers the legal framework of the higher education sector and the relationships universities have externally, particularly with government – their governance, their funding and accountability, and their maintenance of high standards and quality. It then traverses many of the areas where the law has a significant impact on the relationships universities have with their students and their staff.
In a clear and readable style, the book covers matters from anti-discrimination and equal opportunity, transparency and due process in decision-making, employment and student matters, to property rights such as copyright and ownership of intellectual property. It focuses on those issues of the most practical relevance to today’s higher education environment.
Foreword by Pamela Madafiglio and John Birrell
Preface
About the Contributors
Table of Cases
Table of Statutes
Introduction to Higher Education and the Law
Sally Varnham, Patty Kamvounias and Joan Squelch
PART I: THE LAW OF HIGHER EDUCATION
1. The Legal Framework of Higher Education
Joan Squelch
2. University Governance: Responsibility and Accountability
Sally Varnham
3. The Student Voice in University Decision-making
Jade Tyrrell and Sally Varnham
4. Indigenous Knowledges: A Strategy for First Nations Peoples Engagement in Higher Education
Irene Watson and Marcelle Burns
5. The Regulation of International Higher Education
Gaby Ramia
6. ‘The Next Two Decades are Going to Be Transparency’: Regulatory Challenges for Universities
Helen Fleming
PART II: THE LAW AND HIGHER EDUCATION
7. The Contract Between the University and the Student
Francine Rochford
8. Students and the Australian Consumer Law
Patty Kamvounias
9. Student Conduct and University Discipline
Bruce Lindsay
10. Resolution of Student Grievances within Universities
Anita Stuhmcke, Bronwyn Olliffe and Maxine Evers
11. Public Sector Ombudsmen and Higher Education
Patty Kamvounias
12. Diversity, Affirmative Action and Higher Education
Joy Cumming and Ralph Mawdsley
13. Disability Standards for Education
Elizabeth Dickson
14. Employment Law
Jacquie Seemann and Katie Kossian
15. The Tort of Negligence and Higher Education
Robert Horton, Kerry Smith and Abigail Tisbury
16. Workplace Health and Safety
Joan Squelch
17. Academic Freedom and University Autonomy
Nigel Stobbs
18. Copyright Law and Higher Education
Michael Fraser
19. Intellectual Property Rights and Commercialisation of Research in Higher Education
Mary Wyburn
20. Alternative Dispute Resolution in Higher Education
Myles Stilwell
Index
University academic and administrative managers operate in a highly complex legal and regulatory environment. While universities are established under separate Acts which confer wide powers on them, they are subject to many constraints imposed by other statutes and the general law. Universities face significant challenges in educating their office bearers and staff about the sources and limits of their powers and the nature of their legal duties. Higher Education and the Law was published to serve the need for a comprehensive work that surveys the variety of legal principles and issues which arise in the governance and management of Australian universities. …
The book seeks to do more than provide an overview of the relevant areas of law. It highlights the challenges for law in redefining the relationships between universities, government, staff and students in a time of rapid regulatory and social change. … The book provides a handy reference for university counsel, advisers, managers, committee members, and student advocates. The links between topics covered by the different chapters are explained, and cross references included. … I will be very glad to take a copy of the book to meetings of university committees. Read full review…
Pamela O’Connor, Australian Universities’ Review, February 2017
Higher education
institutions are far more than credentiallers; they wield
considerable power and are
important to the economy and
the intellectual life of society.
This book, the first dedicated to the law relating to higher education in Australia, is therefore an important work. … the wide-ranging and informative nature of this book makes it essential reading for all those who work in universities or who advise them.
Jeffrey Barnes, InPrint, Law Institute Journal Victoria, May 2016
Higher education is a complex project involving large numbers of people, significant economic impact including as one of Australia’s largest export markets and its regulation and relationship with the law is similarly complex. In Australia, higher education includes the university sector, upon which most of this book concentrates, and the vocational and educational training (VET) sector. … this is an important book which for the first time brings together expert knowledge of the profound role of the law in its regulation of higher education and in particular the university sector in Australia. … this book’s coverage and detailed consideration of the legal issues concerning higher education and especially universities make a significant and welcome contribution to legal scholarship on higher education. Academics, students, business people working with universities, researchers and indeed anyone who has contact with universities will find this book a valuable reference work, disentangling the complexities of the legal environment within which they operate. Read review…
Prue Vines, Australian Journal of Administrative Law, May 2016
In an Australian first, Higher Education and the Law offers readers a comprehensive yet digestible illustration of the highly regulated multi-stakeholder environment shaping contemporary higher education in Australia.
The book is arranged into two relatively indistinct sections: the law of higher education and the law and higher education. However, this does not detract from the twenty thoughtfully integrated chapters, which primarily focus on three broad themes of policy and law relating to governance, regulation, and participation.
Owing to decades of reform, globalisation and the rapid commodification of education and research, the law of higher education remains relatively scant. Against this backdrop, authors conveniently summarise the existing body of law applicable to higher education, while also exploring opportunities for reform. Of particular interests to legal practitioners are the chapters on student/university contract; employment law; copyright and intellectual property laws; consumer law; negligence and workplace health and safety laws. Disciplinary and dispute resolution regimes are also given good consideration.
The authors should also be commended for advancing discussions of the continued piecemeal approach to the inclusion of Indigenous knowledge in higher education, despite advancements in access and inclusion. Overcoming a legacy of pedagogical marginalisation and exclusion will require more robust internal critique, and the recommendations found in this book offer invaluable strategic guidance.
With public debate over the deregulation of higher education ongoing, this book is a must read for all interested parties. The authors refrain from extensive socio-political considerations, exploring some of the more salient legal issues facing the industry instead. For instance, regulation and transparency are touted as chief among the most pressing of concerns for higher education providers in the coming decades.
Legal practitioners, policy makers, academic staff and management will all benefit considerably from including this text within their library’s repertoire, which will remain current for several years.
Christie Gardiner, Ethos, Law Society of the ACT, December 2015
This is another publication by The Federation Press, being the only legal publisher in Australia which regularly publishes legal works of the highest calibre. This work tackles the very difficult and often murky area of the legal environment of Australian Universities. Largely due to the reprehensible reluctance of Courts to adjudicate upon anything within University walls, for many years the operations, accountability and governance of most Australian universities has been poor at best, but, more regularly, dysfunctional. Of particular concern has been the inability of Australian Universities to properly administer their own internal processes with even a modicum of regularity; this is especially so in areas such as promotions and appointments and the awarding of degrees, prizes and medals. Moreover, as the authors of this work identify, Universities are no longer internally-focused, learning and teaching institutions. They are now large commercial global organisations with international contracts and agreements, many of which relate to substantial profit making ventures. This most interesting work first considers the current legal framework of higher educational facilities and the external relationship which they have with government and then considers issues of governance, funding and accountability and the processes in place (even if rarely complied with) for ensuring the maintenance of standards and quality. The remainder of the book deals with those areas of the law which impact upon the relationship between higher education institutions and their students.
The legal issues surrounding the operation of higher education institutions are developing and becoming ever more prominent. This well written and readable work provides a very clear basis on which to analyse almost any legal issue which might arise in this context.
Queensland Law Reporter – 29 May 2015 – [2015] 20 QLR
