Journal article
The Legal Capacity and Decision-Making within Australian Public Universities
INTERNATIONAL JOURNAL OF LAW & EDUCATION, Vol.24, pp.80-100
2021
Metrics
40 Record Views
Abstract
Australian universities generally promote and undertake activities including scholarship, free inquiry, and research and provide teaching and courses of studies in higher education. They also exercise public and commercial functions to promote their main objects of teaching and research. Universities have significant real estate and property portfolios, they enter into contracts, own copyright and, when involved in legal disputes, have a legal right to sue or be sued in the university's name. Universities can do all of these things because they have legal capacity to do so. The legal capacity of universities is generally accepted, however, the source of such capacity and the meaning of 'legal capacity' do not appear to be well-understood, and the purpose of this article is to shed some light on this area. To this end, the aims of this article are to consider, firstly, what is meant by the term 'legal capacity'; secondly, to examine legal capacity in the university context; and thirdly, to assess the application of ultra vires to the legal capacities of Australian public universities. This article concludes that a statutory statement of objects or functions in a university's enabling legislation is the dominant determinant of a university's legal capacity. Australian public universities, as statutory corporations, are each caught by the well-settled ultra vires doctrine. Members of a university governing body and other university decision-makers must use their university's legislation as the touchstone in determining all university matters and there must be a clearly identifiable nexus with the powers, objects and functions as provided by their university's legislation.
Details
- Title
- The Legal Capacity and Decision-Making within Australian Public Universities
- Creators
- John Leslie Orr (Author) - Southern Cross University
- Publication Details
- INTERNATIONAL JOURNAL OF LAW & EDUCATION, Vol.24, pp.80-100
- Publisher
- Australia and New Zealand Education Law Association
- Identifiers
- 991013085713302368
- Academic Unit
- Faculty of Business, Law and Arts; Law
- Language
- English
- Resource Type
- Journal article