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Recent Legal Confusions In the UNITECH Saga And Implications for the UNITECH Council


Months of confusion about who is responsible for straightening out the management mess at UNITECH by members of the public, students and staff of UNITECH now extends to Minister David Arore.  His 20 December public statement on EM-TV news regarding the Vice Chancellor indicates that some basics of UNITECH governance need to be explained.  

1.0  Major Errors In Legal Authority

In his television statement, Higher Education Minister David Arore stated that he had terminated the vice chancellor stated that a new vice chancellor would be appointed.

2.0  Legislation Defining the Governance of UNITECH.

The Papua New Guinea University of Technology Act of 1986 defines the governance of UNITECH.  The full legislation can be accessed at www.paclii.org/pg/legis/consol_act/pnguota1986446/
When PNG’s public universities were established they were purposely structured so that politicians would not have substantive, direct powers over the universities.   There was a desire to duplicate the management structure of successful universities in Australia and elsewhere.  Without exception outstanding universities function under independent governance bodies that cannot be controlled by the government of the day.  This independence has always been a condition necessary for universities being able to develop into environments of free and independent thinking, creativity and innovation, as well as advancing civil society through promotion of democratic principles.
This vision is contained within the UNITECH Act:
“The objects of the University are–
 (a) the advancement and dissemination of knowledge by teaching, research and otherwise, with particular reference to its practical application; and
(b) the provision of liberal and professional education responsive to the needs of Papua New Guinea.”

The governing structure itself is what gives UNITECH the independence necessary to develop into a centre for creativity, innovation, free and independent thinking.  Provision (b) above specifically gives UNITECH a role of leading in the advancement of civil society, not necessarily restricted to student training.

3.0  Governance of UNITECH relative to the Vice Chancellor

The Act clearly specifies the UNITECH Council as being the legal body with the ultimate power to make all decisions regarding UNITECH’s highest managers, including the vice chancellor:
(1) Subject to Subsection (2), the functions of the Council are–
 (a) to appoint Officers, Professors, Heads of Departments of the University,
academic, administrative and other staff of the University
(b) to have the charge of the management and administration of the income,
property and personnel of the University, and the conduct of all matters
relating to the University not otherwise provided for in or under subordinate
legislation made in accordance with this Act; and
(c) to approve the annual report, annual financial statements, the audit report
thereon and the budget of the University for the next financial year; and
(d) to exercise such other powers and perform such other duties as may be
conferred or imposed on it by this Act; and
(e) generally, to take such action as appears to it best calculated to promote the
interests of the University.
(2) In determining any matter which directly affects the academic policy of the University, the Council shall consult with the Academic Board.”

The Council is legally permitted to delegate any matters it wishes, but it can only do so to bodies within the university, not outside of it:

An authority may by resolution delegate any of its powers and functions (other than the power of delegation and, in the case of the Council, its power to make Statutes) to–
(a) any member of the authority; or
(b) a committee consisting of members of the authority with or without other
persons; or
(c) an officer of the University.”

Note that appointment of the vice chancellor is empowered by Subsection 1 (a).    Termination of the vice chancellor’s contract would come under Subsection 1 (d) and (e).
Minister Arore is not a member of the council, because the council did not appoint him to that position.  The Act does not give the higher education ministerial position an ex officio membership either.
Thus, the law shows conclusively and clearly that Minister Arore has no authority to appoint or terminate the vice chancellor, or give other directives with regard to UNITECH governance.  The best he can do is give advice to the Council, which the Council can take into consideration but is not mandated to follow.

4.0  Ignorance of UNITECH Act Provisions By Political Leaders

From his remarks on 20 December, it is clear that Minister Arore does not know the law and is not receiving sound legal counsel.  This also applies to Prime Minister O’Neill, based on his pronouncements and unilateral decisions made over the past year regarding UNITECH and the Schram issue.   This is a serious deficiency because it creates situations where either one can mis-state, which can lead to embarrassing situations where they are called out on their errors.

5.0  Dereliction of Duty By the Present UNITECH Council

The current UNITECH council’s stunning silence in the face of Minister Arore’s misguided announcements passively encourages destruction of the separation between the Higher Education Ministry and the UNITECH governing bodies that is clearly defined by the UNITECH Act.   This is the very basis for a successful university.   The decline in UPNG and UNITECH that we have witnessed over the past decades is nothing compared to what will occur if the institutions become subservient to government demands.  
Furthermore, the council’s current low key approach creates an impression that it does not have much power, which then invites a reduction in the actual power of the council, which is substantial.   The current approach invites further challenges that will erode the university’s independence.  
As such, the council has a moral obligation to speak out in rebuttal to the Minister, defending its legally prescribed independence.  That it did not do so at its last meeting nor subsequently upon the Minister’s statement creates speculation that political pressure is at work to destroy the ability of the Council to govern independently and responsibly.  If so, it is a sad day for our nation and its universities.
As a body of highly educated members of PNG civil society, the UNITECH Council should take their citizen responsibilities seriously and not allow themselves to be politically railroaded as is now the case.