Blinking dons or donning blinkers: fiduciary and common law obligations of members of governing boards of Australian universities

Introduction and Objectives In 1995 the Higher Education Management Review (the Hoare report)2 proposed that members of governing bodies should take increased responsibility for the accountability, management and administration of universities.3 The Committee identified four elements of probity that need to be clarified for governing body members. These were disclosure of interests, fiduciary responsibility, liability, and indemnity. The Hoare report went on to suggest that relevant legislation for governing bodies include a requirement that members disclose the nature of any direct or indirect interest (pecuniary or other) in matters being considered or about to be considered at a meeting of the governing body.4 More recently the Commonwealth Department of Education, Science and Training has implemented another study on university governance which contains a number of concerns about the nature of the legal obligations of members of governing bodies, particularly those relating to the issue of whether the members are trustees or delegates.5 Lawyers would appreciate that well established equitable doctrines surrounding the notion of fiduciary duty embrace the four elements above described and apply them to the governance of modern corporations. What is not so clear is the extent to which members of university governing boards are caught by these doctrines in their management of universities. This paper will address that issue.