Schedule 3 — Savings and transitional provisions

(Section 32)

PART 1A — General

1A Savings or transitional regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

        (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
        (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

PART 1 — Interim Council

1 Interim Council of the University _{^{(see editorial note)}}

(1) Pending the commencement of section 9, the Council shall consist of:

        (a) the Chancellor (if the Chancellor is not otherwise a member of the Council),
        (b) the Vice-Chancellor,
        (c) the person for the time being holding the office of:
                (i) presiding member of the Academic Board (if that person is not the Vice-Chancellor), or
                (ii) deputy presiding member of the Academic Board (if the presiding member is the Vice-Chancellor),
        (d) the person who held office immediately before the commencement of this clause as the Principal of the Kuring-gai College of Advanced Education, and
        (e) not more than 16 persons appointed by the Minister.

(2) The members of the Council shall, subject to this Act, hold office until the Council is duly constituted under section 9.

(3) If a Council is duly constituted under section 9 before the expiration of 2 years from the commencement of this clause, the person referred to in subclause (1)(d) shall, until the expiration of that period, be taken to be an official member of the Council so constituted.

(4) The first meeting of the Council shall be convened by the first Vice-Chancellor who shall preside at all meetings of the Council until a Chancellor is elected.

(5) The Council shall make all necessary by-laws and take all necessary steps to ensure, as far as possible, that a Council is duly constituted under section 9 so as to take office within 12 months after the commencement of this clause or within such extended time as is specified in a proclamation at any time during that period of 12 months.

(6) The provisions of this Act (except clause 1 of Schedule 1) applicable to the Council or the members of the Council apply to the Council as constituted in accordance with this clause or the members holding office under this clause.

(7) Nothing in this Act prevents the Council from being constituted in accordance with this clause before the commencement of section 4 and, if the Council is so constituted, it may exercise its functions (as far as is practicable) even though the University has not yet been established under this Act.

_{Editorial note. The period within which the Council, as constituted under this clause, may exercise its functions was extended until 30.11.1990. See Gazette No 109 of 31.8.1990, p 7846.}

2 Chancellor

(1) The Council constituted under this Part shall:

        (a) at its first meeting or as soon as practicable thereafter, and
        (b) whenever a vacancy in the office of Chancellor occurs,

elect a person (whether or not a member of the Council) to be Chancellor of the University.

(1A) The Chancellor elected under this clause does not assume office before the commencement of section 4 otherwise than for the purpose of exercising his or her functions as a member of the Council.

(2) The Chancellor elected under this clause shall, subject to this Act, hold office until a Chancellor is duly elected under section 10.

(3) Section 10(1) and (2) do not apply to or in respect of the Chancellor elected under this clause.

3 Deputy Chancellor

(1) The Council constituted under this Act shall:

        (a) at its first meeting or as soon as practicable thereafter, and
        (b) whenever a vacancy in the office of Deputy Chancellor occurs,

elect one of its members to be Deputy Chancellor of the University.

(1A) The Deputy Chancellor elected under this clause does not assume office before the commencement of section 4.

(2) The Deputy Chancellor elected under this clause shall, subject to this Act, hold office until a Deputy Chancellor is duly elected under section 11.

(3) Section 11(1) and (2) do not apply to or in respect of the Deputy Chancellor elected under this clause.

4 First Vice-Chancellor

(1) The first Vice-Chancellor shall be the person who, immediately before the commencement of this clause, held office as the Vice-Chancellor of the University of Technology, Sydney.

(2) The first Vice-Chancellor shall be taken to have been appointed for the residue of his or her term of office as Vice-Chancellor immediately before that commencement.

(3) Section 12(2) does not apply to or in respect of the first Vice-Chancellor.

PART 2 — Savings

5 University a continuation of the old University

The University is a continuation of, and the same legal entity as, the University of Technology, Sydney, established by the University of Technology, Sydney Act 1987.

6 Convocation

(1) Convocation includes:

        (a) past members of the governing body of any of the former institutions that have, pursuant to this Act or to the Higher Education (Amalgamation) Act 1989 or otherwise, become a part of the University, and
        (b) graduates of any of those institutions.

(2) In this clause, a reference to a former institution includes a reference to any predecessor of the institution.

7 Saving of delegations

Any delegation made or taken to have been made by the Council of the University of Technology, Sydney under the University of Technology, Sydney Act 1987 shall be taken to be a delegation under this Act by the Council.

8 Existing investments

Nothing in this Act affects the validity of any investment made on behalf of the University before the commencement of Schedule 2.

8A Conduct of elections etc

(1) For the purpose only of enabling the Council to be duly constituted on or after the commencement of section 9, elections may be conducted and appointments made before that commencement as if:

        (a) the whole of this Act, and
        (b) sections 16 and 24 of the Higher Education (Amalgamation) Act 1989,

were in force.

(2) A member who is elected or appointed to the Council under this clause does not assume office before the commencement of section 9.

8B Control and direction

The governing bodies of:

(a) the University of Technology, Sydney, established under the University of Technology, Sydney Act 1987,

(b) the Kuring-gai College of Advanced Education, and

(c) the Institute of Technical and Adult Teacher Education,

are subject to the control and direction of the Council pending the dissolution of those bodies.

9 By-laws

Any by-laws in force immediately before the commencement of this clause under the University of Technology, Sydney Act 1987:

(a) continue in force as if they had been made by the Council, and

(b) may be amended and revoked accordingly.

10 Validation relating to elections

Any act, matter or thing done in relation to the conduct of elections referred to in Chapter 3 of the University of Technology, Sydney, By-law 1990 before the commencement of that By-law that would have been validly done if that By-law were then in force, is validated.

11 Visitor

(1) Section 13(2) extends to disputes and other matters arising before the commencement of this clause.

(2) However, if an inquiry by or at the direction of the Visitor into a dispute or other matter has commenced or been completed before the commencement of this clause, the dispute or other matter is to be dealt with and determined as if the University Legislation (Amendment) Act 1994 had not been enacted.

12 Effect of the University Legislation (Amendment) Act 1994 on existing by-laws and rules

(1) Any by-law made or taken to have been made under this Act and in force immediately before the commencement of this clause is taken to have been made under this Act as amended by the University Legislation (Amendment) Act 1994, but only to the extent to which it could have been made under this Act if this Act had been so amended at the time the by-law was made.

(2) Any rule in force immediately before the commencement of this clause is taken to have been made under this Act as amended by the University Legislation (Amendment) Act 1994, but only to the extent to which it could have been made under this Act if this Act had been so amended at the time the rule was made.

PART 3 — Provisions consequent on enactment of Universities Legislation Amendment (Financial and Other Powers) Act 2001

13 Investment powers

Until an order is made under clause 2 of Schedule 2 (as substituted by the Universities Legislation Amendment (Financial and Other Powers) Act 2001), approval is taken to have been given by order under that clause to the investment by the Council of any funds of the University in any manner that the Council was authorised to invest those funds immediately before the Council ceased to be an authority for the purposes of Part 3 (Investment) of the Public Authorities (Financial Arrangements) Act 1987.

14 Validation

Any act or omission occurring before the substitution of section 6 by the Universities Legislation Amendment (Financial and Other Powers) Act 2001 that would have been valid had that section as so substituted been in force from the commencement of that section as originally enacted is (to the extent of any invalidity) taken to be, and always to have been, valid.

PART 4 — Provisions consequent on enactment of University Legislation Amendment Act 2004

15 Definitions

In this Part:

amending Act means the University Legislation Amendment Act 2004.

former section 9 means section 9 as in force immediately before its substitution by the amending Act.

new section 9 means section 9 as substituted by the amending Act.

relevant day means the date of assent to the amending Act.

16 General

The provisions of this Part are subject to any regulations made under clause 1A.

17 Constitution of Council

(1) Subject to this Act, on the relevant day:

        (a) a person holding office under former section 9(2) ceases to hold that office, and
        (b) a person holding office under former section 9(4) or (6) is taken to be appointed as a member under new section 9 (1)(b) or (c), respectively, for the balance of the person's term of office, and
        (c) a person holding office under former section 9(5)(a), (b), (c), (c1) or (d) is taken to be elected as a member under new section 9(1)(d), (e), (f), (g) or (h), respectively, for the balance of the person's term of office.

(2) The Council is to make all necessary by-laws and take all necessary steps to ensure, as far as possible, that the Council is duly constituted under new section 9 as soon as is reasonably practicable after the relevant day.

(3) For the purposes of making the by-laws referred to in subclause (2), the Council must be constituted so as to include all of the members required to be appointed under new section 9(1)(b).

(4) The Council is taken to be properly constituted until such time as it is constituted in accordance with new section 9.

(5) A casual vacancy occurring in the office of a member before the Council is duly constituted under new section 9 is to be filled as follows:

        (a) if the vacancy occurs in the office of a member appointed under new section 9(1)(b), the Minister is to appoint a person whom the Minister considers appropriate,
        (b) if the vacancy occurs in the office of a member appointed under new section 9(1)(c), the Council is to appoint a person whom the Council considers appropriate,
        (c) if the vacancy occurs in the office of a member elected under new section 9(1)(d) or (e), the Council is to appoint a person qualified to hold that office,
        (d) if the vacancy occurs in the office of a member elected under new section 9(1)(f) or (g), the Council is to appoint a person qualified to hold that office following consultation with the relevant student body or bodies recognised by the Council,
        (e) if the vacancy occurs in the office of a member elected under new section 9(1)(h), the Council is to appoint a person qualified to hold that office following consultation with members of Convocation whose names are entered in the Roll of Convocation.

(6) Subject to this Act, a member appointed under subclause (5) holds office from the time that person is appointed under that subclause until the expiry of the term of that member's predecessor.

(7) Subject to this Act, if, on the expiry:

        (a) of a member's term of office that is continued under subclause (1)(b) or (c), or
        (b) in the case of a member appointed under subclause (5), of the term of office of the member's predecessor, the by-laws necessary to enable a person to be duly appointed or elected (as the case may be) to that office under new section 9 are not yet in force, the member may continue to hold that office until such time as a person is so duly appointed or elected.

(8) For the purposes of subclause (1), a member filling a casual vacancy and holding office immediately before the relevant day is taken to hold that office immediately before the relevant day under the provision under which the member's predecessor was elected or appointed.

(9) A person who ceases to hold office under subclause (1)(a):

        (a) is not entitled to any remuneration or compensation because of loss of that office, and
        (b) is eligible (subject to this Act and if otherwise qualified) to be appointed as a member.

18 Maximum incumbency for Council members

(1) Consecutive years of office served by a member of the Council immediately before the relevant day are to be taken into account in applying clause 1(3) of Schedule 1 in respect of the member.

(2) However, clause 1(3) of Schedule 1 does not affect the operation of clause 17(1)(b) or (c) or (7) of this Schedule.

19 Application of section 21G

Section 21G, as inserted by the amending Act, applies only in relation to breaches of duty constituted by acts or omissions occurring after the relevant day.

20 Continuation of Council

No amendment made by the amending Act affects the continuity of the Council.

PART 5 — Provisions consequent on adoption of standard governing body provisions

21 Adoption of standard governing body provisions under the Universities Governing Bodies Act 2011

(1) Terms used in this clause and also in the Universities Governing Bodies Act 2011 have the same meaning in this clause as they have in that Act.

(2) In this clause:

amended provision means a provision of this Act and the by-laws as amended by the Universities Governing Bodies (University of Technology, Sydney) Order 2012.

existing appointed member of the Council means a member of the Council as constituted immediately before the governing body resolution took effect.

governing body resolution means the governing body resolution passed by the Council on 18 April 2012.

(3) An existing appointed member of the Council continues in office until the expiration of the term for which the member was to hold office immediately before the governing body resolution took effect (subject to the member's office becoming vacant earlier for a reason other than the expiration of the member's term of office).

(4) The proportion of Council and Ministerially appointed members of the Council specified under the constitution rules is, until all existing appointed members of that category cease to hold office as referred to in subclause (3), taken to be the number of existing appointed members in those categories at any particular time.

(5) A requirement of the by-laws relating to the time within which persons who may be suitable for appointment as a Council or Ministerially appointed member of the Council are required to be identified or recommended, does not apply in respect of the nomination of a person for appointment to fill a vacancy in the office of an existing appointed member.

(6) A person who, immediately before the governing body resolution took effect, held office as an elected member of the Council is taken to have been elected under the corresponding category of membership set out in amended provisions.

PART 6 — Provisions consequent on enactment of Universities Legislation Amendment (Regulatory Reforms) Act 2014

22 Definition

In this Part:

amending Act means the Universities Legislation Amendment (Regulatory Reforms) Act 2014.

23 Guidelines for commercial activities

The Guidelines approved for the time being under section 21B, as in force immediately before the amendments made to that section by the amending Act, continue to have effect as if they were Guidelines determined by the Council under that section as amended.

24 Existing investments

An amendment made to this Act by the amending Act does not affect the appointment of a funds manager or the validity of any investment made by or on behalf of the University before the commencement of the amendment.

25 Previously acquired land

Section 18(2)–(3), as inserted by the amending Act, extend to land acquired from the State before the insertion of those subsections.

PART 7 — Provision consequent on enactment of Statute Law (Miscellaneous Provisions) Act 2017

26 Financial accommodation and risk management

An amendment made to this Act by the Statute Law (Miscellaneous Provisions) Act 2017 does not affect the validity of any financial accommodation made by or on behalf of the University, any transaction or arrangement entered into or participated in to manage a financial risk, or any disposal or other dealing with property of the University, before the commencement of the amendment.