(1) Guidelines for Commercial Activities as required by Section 21B of the University of New England Act 1993
(2) The University of New England's core objects are the promotion of:
(3) In addition to these core objects (provided under section 6(1) of the University of New England Act 1993), the University has various functions provided under sections 6(2) and (3) of the Act. In particular, section 6(3) provides that the University may exercise commercial functions. These commercial functions comprise the commercial exploitation or development, for the University's benefit, of any facility, resource or property of the University or in which the University has a right or interest (including, for example, study, research, knowledge and intellectual property and the practical application of study, research, knowledge and intellectual property) whether alone or with others.
(4) In an effort to regulate these commercial functions, Division 3 of the Act requires the Council to adopt Guidelines for Commercial Activities (section 21B), to maintain a Register of Commercial Activities (section 21C), to report to the Minister on commercial activities (section 21D), and permits the Minister to refer a commercial activity to the Auditor-General for investigation or to the Ombudsman for investigation as a complaint (section 21E). Commercial activities are defined in section 21A to mean:
(5) These Guidelines provide a set of principles and processes for the development and conduct of commercial activities, which aim to achieve optimal benefits for the University while minimising the risks to it. Due to the significant use of public resources any proposed commercial activity must be established and undertaken prudently within clear and systematic arrangements. Essential elements include requirements for undertaking feasibility and due diligence assessments, identifying appropriate governance and administrative arrangements, undertaking risk assessment and risk management measures, and monitoring and reporting on commercial activities.
(6) The Guidelines have a key focus on the evaluation of proposed commercial activities and procedures for their approval and monitoring. However, all operations of established commercial activities should also be conducted under the relevant principles of these Guidelines and related University manuals and procedures.
(7) Any action taken in the context of these guidelines should also be taken in the context of other relevant University Policies. Including:
(8) The Council delegates to the Vice-Chancellor or nominee, the responsibility to establish and maintain procedures for the preliminary evaluation of whether a Proposal involves a commercial activity, as defined in these Guidelines.
(9) The Council delegates to the Vice-Chancellor or nominee, the role of evaluating each Proposal submitted to the University to determine whether it:
(10) Without limiting the Council's right to determine other criteria, any commercial activity which involves the exposure (including funding) of the University, following evaluation by management, of;
(11) The Council must establish and maintain procedures for the evaluation of any Proposal identified under paragraph 9 (b) as requiring assessment under these Guidelines. The procedures for evaluation must take into account the following principles and methods of analysis:
(12) The assessment of commercial activities should include consideration of the application of the NSW Government Policy Statement on the Application of Competitive Neutrality.
(13) This includes pricing commercial activities in a competitively neutral way and including the full cost of service provision unless that provision is provided on an ad hoc basis eg using surplus capacity.
(14) When assessing a proposed activity the University's pricing policy and guidelines should be taken into account.
(15) Under the procedures, a Proposal for which a certificate is given under paragraph 11(i) may be referred to the Delegate having responsibility for the Proposal, or to the Council where the Proposal involves exposure exceeding $1,000,000, for approval conditional upon compliance with the Governance and Documentation requirements in paragraph 16 and final approval under paragraph's 17-20.
(16) The Council must establish and maintain procedures for any Proposal for which conditional approval has been given under paragraph 15 for any one or more of the following purposes:
(17) Subject to paragraph 18 below, when the evaluation of a Proposal has been completed and certified in accordance with paragraph 11 and the Governance and Documentation procedures have been completed and certified in accordance with paragraph 15, the Proposal may be submitted to the appropriate Delegate under paragraph 16 for final approval.
(18) Any persons approving a proposed activity under delegated authority must not also be the sponsor of the activity.
(19) Any Proposal or commercial activity which involves the exposure (including funding) by the University in excess of $1,000,000 requires the approval by resolution of the Council.
(20) The Council or its Delegate shall review the certificates and recommendations made under paragraph 11 and the documentation prepared in accordance with paragraph 15, and any legal and accounting advice obtained in relation to the Proposal, before giving final approval for the Proposal to be implemented.
(21) The Council must establish procedures to maintain a register of interests in accordance with procedures determined by the Council.
(22) Under such procedures, Council members, senior officials, members of any committee, and sponsors and managers of commercial activities declare from the outset any interest, which has the potential to conflict with the commercial interests of the University.
(23) Under such procedures, the register of interests must be open to inspection by any member of the Council, the Auditor General of New South Wales and any representative of the Minister or the Treasurer.
(24) Under such procedures, any member of the Council or of a relevant committee who has an interest in any company, institution or other entity which is, or is proposed to be, involved in any commercial activity of the University is required to:
(25) The Council must establish and maintain in accordance with Section 21C of the Act a register of commercial activities of the University inclusive of its controlled entities.
(26) The Council delegates the powers and functions of the registrar of the register to the Chair of the Entrepreneurial Committee (Chair).
(27) Any commercial activity which was being carried on, or was in the course of being implemented, on 1 March 2002 must have its relevant details entered in the register by 31 December 2002.
(28) The Council or its Delegate may authorise the Chair to alter any details included in the register of commercial activities if:
(29) The Council or its Delegate may determine at its discretion that small low risk activities be grouped together as a specific class and treated as a single activity for the purposes of the register.
(30) The Register of Commercial Activities is to be presented to the Finance Committee by management on an annual basis or as requested by the Finance Committee, the Audit & Compliance Committee or Council.
(31) Management are to review the register at least annually and each commercial activity listed on the register is to be fully reviewed at least every three years. Such reviews should identify any significant changes and justify the activity continuing for a further period if that is the outcome.
(32) The Council may by resolution delegate any or all of its functions in relation to the commercial activities of the University (except this power of delegate) to a committee of the Council or to any authority or officer of the university or to any other person or body prescribed by the University's by-laws.
(33) Where delegation occurs the delegation should take into account the requirement of the delegate(s) to have appropriate commercial experience or to have access to the advice of an appropriately qualified person.
(34) The Council may rely on the advice of the Vice-Chancellor or other authorised delegate in meeting the compliance requirements of these guidelines.
(35) Notwithstanding paragraph 32, the Council must not delegate the power to give final approval to any Proposal under which the University would have an exposure in excess of $1,000,000.
(36) A delegation by Council under paragraph's 32-36 may limit the delegated authority by reference to the type of commercial activity, financial limits or any other criteria determined by the Council.
(37) The Council must, not later than 31 December 2002, complete a review of each of the manuals of the University, which contain the procedures, criteria and standards for implementing these Guidelines.
(38) The review will ensure that the manuals comply with the requirements of the Act for commercial activities, and with these Guidelines.
(39) Boards of Directors of controlled entities are to be advised of the requirement to comply with Section 21 B of the Act — Guidelines for Commercial Activities and are to maintain a register of Commercial Activities in line with Section 21C of the Act. The Boards of Directors of the controlled entities are to be responsible for ensuring that evaluation, risk management and accountability processes are in place and that these are consistent with the requirements of university's Act in relation to commercial activities and with the University's guidelines.
(40) The governing body of the university is responsible for approving, monitoring and overseeing controlled entities. As such the Boards of Directors will be required to submit for review the Entities Guidelines for Commercial Activities and on a quarterly basis its register of Commercial Activities.
(41) In these Guidelines:
(42) "Act" means the University of New England Act 1993 as amended.
(43) "Benefit" means:
(44) "commercial activity" means:
(45) Indicators that should be used in assessing whether an activity is a commercial activity and is subject to the guidelines are:
(46) "Council" means the Council of the University as defined in section 8 of the Act.
(47) "Delegate" means a person, committee or entity to which the Council delegates a function in accordance with paragraph 9 of these Guidelines.
(48) "Proposal" means any proposal for the University to participate in a commercial activity.
(49) "Risk" means: