Previous issues:

The NSW Legislative Council's Standing Committee's report Governance of NSW universities highlighted the difficulties universities may encounter in properly identifying when a conflict of interest arises for individuals involved in the governance of the university. We consider some of the key reasons why universities might encounter difficulty in deciding when a conflict of interest might arise and how to manage it.

As use of podcasting, electronic classrooms, social networking sites and other technologies continues to grow in universities, constant vigilance is required to ensure that content created in the institution's name does not infringe the legal rights of authors and creators. We examine the recent rise of Apple's iTunes U as a dedicated channel for the delivery of university content and reflect on the issues universities need to consider when podcasting classroom content.

Universities, as landowners and occupiers of substantial parcels of land on which a wide variety of activities are carried out, shoulder the burden of potential liability for contaminated land and the requirement to notify regulatory authorities of contaminated land.  Recent amendments to the NSW Contaminated Land Management Act are potentially relevant to all universities because the intent of the amendments may well be adopted in other states, and because universities, as landowners, occupiers, developers, PPP entities or research partners, may be liable under the legislation.

The charitable status of public universities can hinder their abilities to directly engage in activities aimed at commercialising or profiting from the results of research activities because charitable institutions cannot pursue profit as an end in itself.

On 3 September 2009, the Federal Court confirmed that universities cannot presume to own inventions developed as part of an academic employee's research activities, especially where the employee has no contractual 'duty to invent' distinct from a duty to carry out research. The unanimous decision in University of Western Australia v Gray has serious ramifications for university-based research, particularly with the increased focus on the commercialisation of research and pressure to derive revenue from research activities.

The higher education sector can benefit from the new 'Research and Development Tax Credit' and the 'Small Business and General Business Tax Break' which provide incentives for universities and other tertiary institutions to invest in order to achieve their objectives.

Universities looking to buy or sell real property need to be aware of significant changes to the operation of the GST regime proposed in the recent federal budget such as the replacements of the 'GST-free' treatment of going concerns and farm with a 'reverse charge' mechanism and a review of the margin scheme.

The use and membership of SNS has grown exponentially in recent years. SNS offer many opportunities for universities, but at the same time, universities need to be aware of and manage the legal risks inherent in the use of SNS, including copyright, defamation and privacy.

The establishment and operation of many Cooperative Research Centres (CRCs) involves cooperation amongst industry participants, including those who may be competitors in other aspects of their businesses.  It is very important that participants in CRCs remember that the prohibitions against anti-competitive conduct in the Trade Practices Act 1974 (Cth) (TPA) will apply to the CRC collaboration.  With the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cartel Bill) likely to be passed soon, it is a timely reminder for those involved in, or in the process of establishing, a CRC to make sure they are vigilant about the application of the TPA to their operations.

In August 2007, the Australian Learning & Teaching Council approved funding for this research project to be undertaken by legal academics from Southern Cross University, the University of Sydney and the University of Technology, Sydney. The project is entitled “Student Grievances & Discipline Matters Project” and aims to scope and study approaches to teaching and learning that may have legal or quasi-legal consequences within and beyond Australian universities.

In the last edition of Higher Education Focus we discussed the case of University of Melbourne v McKean. The University refused access to examinations papers and marking guides, relying on exemptions in s30(1) of the Freedom of Information Act which deals with 'internal working documents', and s34(4)(c) which deals with examination papers and similar documents whose use has been completed. Mr McKean made an application for review to VCAT in respect of the University's decision to refuse him access.  The Tribunal ordered that the documents be released.

The National Greenhouse and Energy Reporting Act 2007 (NGER) and accompanying regulations that require the reporting of greenhouse emissions, energy use and energy production, have already come into operation. It is therefore important that universities are aware of their potential obligations under this legislation and the impacts that it may have on their business. The first reporting period ends on 1 July this year with affected corporations required to report by 31 October.

On 1 December 2008, the Vexatious Proceedings Act 2008 (NSW) (Vexatious Proceedings Act) came into effect and replaced the vexatious litigant provisions contained in the Supreme Court Act 1970 (NSW). The new legislation, which is largely based on model provisions developed by the Standing Committee of Attorneys General, is designed to expand the court's power to control vexatious litigants and will be beneficial to Universities and Higher Education Service Providers.

The Victorian Supreme Court has upheld a student's claim, under the Freedom of Information Act, for access to examinations papers and marking guides.

In spite of current financial conditions universities are increasingly turning to public private partnerships (PPPs) as the preferred means of funding, building and operating student accommodation projects.

As part of a wider examination of Australia's national innovation system, the Federal Government commissioned a review of Australia's Cooperative Research Centre (CRC) Program. The resulting report, Collaborating to a purpose, released in August 2008, recognised the important role the CRC Program still plays in Australia's innovation system by encouraging large-scale collaborative research but also recommended several changes and improvements to address perceived problems with the Program itself and issues raised by universities, other research entities, industry and CRCs themselves.

Education in China is currently in a boom phase, with Chinese universities investing large amounts into the promotion of courses, research and development. Australian educational institutions can benefit from this scramble for knowledge and access to international technologies through their involvement in cooperative education ventures with Chinese institutions. But they need to understand the regulatory regime that surrounds Chinese education or it can be difficult to gain the necessary approvals.

While universities may not be subject to any additional regulation under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), their international students may feel the affects of its implementation when seeking financial services while studying in Australia.

A recent Federal Court decision is of particular significance to universities because it takes a narrow approach to the issue of when a university will be entitled to ownership of inventions developed by their academic staff.

In early February this year, the State Government announced that it would conduct a full review of the Acts which govern Victoria's public universities. This announcement was made as part of the Premier's Statement of Government Intentions for 2008, which included a promise to 'modernise university governance'.

Over the past few years there has been a notable shift in the way universities and research organisations have approached commercialisation of their intellectual property. Some have had the budget and focus to establish in-house capacity. Others have sought to complement in-house skills with external collaboration and more recently we have seen movement towards full outsourcing of IP commercialisation services. This article gives an overview of some of the issues that usually appear in the course of negotiating an IP commercialisation outsourcing arrangement.

Universities need to be aware of the dynamic climate change policy environment, to ensure they comply with their obligations under the new laws, protect themselves against risk, and to ensure they are ready to capitalise on new opportunities as they arise.

The increasing use of technologies such as podcasts, chatrooms, online forums and other forms of 'electronic classroom' has led to a proliferation of new content created in, and by, educational institutions.

Higher education institutions looking to recognise contributions people make to the institution for free ought to have in mind the various tax law aspects of doing so.

The new Labor Government has introduced a new Bill known as the Higher Education Support Amendment (Removal of Higher Education Workplace Relations Requirements and National Governance Protocols Requirements and Other Matters) Bill.

Quality student accommodation is an important factor in attracting and retaining both local and international students at tertiary institutions in Australia. Students are now seeking accommodation facilities which offer not only affordable and quality accommodation, but also complementary ancillary services.

The Copyright Act 1968 (Cth) has a significant influence on the way higher education providers can use copyright material, including books, articles, online research resources, films and sound recordings.

A comprehensive summary of class action law in Australia.

In this first edition of Higher Education Focus, we provide an overview of the Government and ALP workplace relations policies – focusing on the aspects of the policies which will be important to the university sector.