Statement by Vice Chancellor to Committee

Submission to the Standing Committee on Government Agencies

Denial of Tenure to Dr David Rindos -- The University of Western Australia

1. The Inquiry Generally

A

I welcome the opportunity to put my views to this Parliamentary Committee. I am accompanied by Mr Chris Zeliestis, QC.

At the outset I confirm that the University will co-operate fully to achieve a speedy and conclusive end to this Inquiry.

However I stress that the University does so under protest for the following reasons:

(i) Visitor

The University of Western Australia Act contains specific provision for the resolution of internal disputes such as this by reference to the Visitor, an avenue of redress which Dr Rindos steadfastly and despite statements to the contrary, has failed to use. This was the avenue recommended by the State Industrial Commission when it determined that it had no jurisdiction to consider the matter;

(ii)Internal Industrial Dispute

The question of Dr Rindos' employment is essentially an internal industrial dispute, and for this Parliamentary Committee to inquire into it or indeed other matters within the exceedingly broad terms of reference it has set for itself, establishes a dangerous precedent for the future as it effectively means that Parliament is reserving the right to intrude into matters which in relation to the University are, under the University of W A Act, the responsibility of the University Senate. It may be asked why one determination of employment in a total workforce of 2500 people is to be examined in this manner. Neither is it the case that Dr Rindos is the only person to be denied tenure at The University of Western Australia. There are at least 3 recorded cases since 1977 of staff who went to the limit of probation and then resigned in the face of an impending decision not to grant tenure. There are several more cases of staff being counselled into resignation in the light of adverse reports on their suitability for tenure. The reasons behind the holding of an Inquiry into one such event are not apparent to me.

(iii) Procedural Fairness

Although I acknowledge that it is ultimately a decision for the Committee to make, if the Committee expects public respect for its operations and findings then it must operate with a commensurate level of fairness, soas to ensure that what is as I have indicated is an internal industrial adversarial dispute, is conducted so that the University has the opportunity of testing the claims of Dr Rindos, and he those of the University, and both are able to effectively put forward their respective cases. The University is entitled to nothing less than full procedural fairness in all respects for the benefit of all parties. The Committee however has confirmed that it will:

not permit persons appearing before it to be legally represented,
not allow them the right to cross examine witnesses by counsel,
not allow them the opportunity to see all material received by the Committee in respect of them
not inform them of any allegations which may be made against them soas to enable them to fully respond to those allegations

The terms of reference indicate that the inquiry is into the common law fairness of the denial of tenure to Dr Rindos. The Inquiry's findings will be meaningless if it does not itself allow common law fairness to the University.

(iv)Parliamentary interference

This Inquiry also clearly raises the issue of the autonomy of all Western Australian Universities and the academic freedom of their staff which is essentially to enable them to fulfil their respective responsibilites without political control or direction. At a more serious level it opens up the possibility that the political correctness of views expressed by individual academics can be made the subject of investigation. Any such attack on academic freedom would be totally unacceptable. The essential independence of all the Universities is threatened by this Inquiry.

(v) State Government Agency

There is serious legal question as to whether the Standing Committee on Government Agencies has the constitutional power to investigate the internal affairs of the University in that the University is not a State Government Agency. The University and its Senate are fully accountable under the University Act, under the Financial Administration and Audit Act (pursuant to different rules from those applicable to State Departments and Bodies) and under other State legislation. It is accountable in the usual way to the Courts and the Industrial and other Commissions. It is also accountable to the provider of its funds -- the Federal Government. It is not subject to he State Public Sector Management Act. It does not enjoy relief from substantial State taxes as do State Departments and Bodies. It is not treated by the State as a State Agency. It does however have relief from substantial Federal taxes;

(vi) Ombudsman

It must be questioned why Parliament in this instance chose to establish a parallel inquiry to that already underway under legislation which Parliament itself has established for the very purpose of such inquiries; that is, the Parliamentary Commissioner Act of 1971. The Committee has, by establishing this Inquiry, left the Ombudsman with little choice but to discontinue his inquiries, inquiries instigated by Dr Rindos and inquiries which the University has already had to devote significant resources.

(vii) Costs

The University's costs of this inquiry and the possibly aborted Ombudsman's enquiry come out of the University's funding, to which the State Government contributes little. This expenditure on the limited external assistance the University is using, diminishes the money available for the University's central objectives. More substantially the indirect costs to the University officers' [sic] away from their normal duties are enormous. The costs to Parliament of this Inquiry, its support and facilities are also substantial.

B

The University is strongly of the opinion that it would be improper to expend public money on technical legal arguments about the legitimacy of this Inquiry. It seeks a swift and proper consideration of the relevant issues and will cooperate to that end. For the reasons I have detailed however the University must reserve its rights in connection with this Inquiry. I confirm that it will respond with due diligence to all reasonable requests from the Committee.

Denial of Tenure to Dr D Rindos

Dealing specifically with the question of the denial of tenure to Dr Rindos, there is no doubt in my mind that the University acted with all fairness and propriety. I will not repeat the material set out in my response to the Ombudsman which details all the processes involved, which document the Committee has. I refer all members to it. I will simply mention now two key points.

1. The Tenure Review Committee procedures which resulted in a recommendation to me that I deny tenure was negotiated with and agreed to by Dr Rindos' Union on his behalf. A Union observer attended all meetings of that Committee. No objection was taken by the Union to the review committee process. The Union has since ceased assisting Dr Rindos in this matter.

2. For me to have made the contrary decision, that is to grant tenure to Dr Rindos, would have meant acting all the advice I received from the former Head of Department, the Head of the relevant Division, the Tenure Review Committee, legal advice I obtained, and the advice from my deputy and other University Officers. My responsibility was to make a decision in the best interests of the University as a whole. That is what I did. To have done otherwise and to have ignored those recommendations and advice would have left me open to censure. I made the only decision available to me to serve the best interests of the University as a whole which is my prime obligation under the University Act.

3. Effect of the Rindos Affair

It has been suggested by some that the studies and careers of students have suffered by this affair and that it has substantially damaged the national and international standing of the University of Western Australia. I wish to address both of those suggestions.

Certainly there were several postgraduate students who were caught in the eye of the storm which occurred in the Archaeology Department during Dr Rindos' time. I subsequently made sure that satisfactory arrangements were made for their continuing supervision and that they received asssitance to complete their degrees. Of the 6 affected students, 1 has now completed the degree, 1 is approaching completion this year having gained commendations in their 1995 annual report and 1 is resuming enrolment this year after 2 years maternity leave. 3 have withdrawn, 1 to return to England where she is still contemplating submission according to correspondence received in 1995. 3 of the 6 were given generous extensions to their scholarships beyond the normal term and 3 were given funding either from their department or from my own discretionary budget.

By all the accepted indicators of objective judgment there is no evidence of adverse impact on the University. On the contrary the University appears to be flourishing. Overall student recruitment remains in terms of both number and quality at the highest level, with no falling off in Archaeology units or research interest. We continue to appoint top quality staff including in the area of Archaeology. We are attracting increasing levels of public funding and private sponsorship. We have emerged in the top band in the 3 successive Federal Government quality audits of tertiary institutions in Australia, being one of only 6 in Australia, and the only one in Western Australia. We continue to enjoy a high international reputation which I can verify having just returned from a meeting of Heads of all Commonwealth Universities. Further and as recently reported in The Australian The University of Western Australia is the top research University in Australia.

4. The Reasons for the Inquiry

In the Chairman's letter to the Chancellor advising the University that this Inquiry had been constituted he indicated that there were two reasons why the investigation was being undertaken. Those were " the comments and information provided by the Hon Mark Nevill MLC to the House and to the Committee, and the recent extensive yet contradictory news coverage in the press". The University has not been advised what Mr Nevill has told the Committee. The University itself was given no opportunity to address the Committee either before the decision to hold the Inquiry or the decision setting its terms of reference.

There is a particular incident which bears on the exaggerated importance of this issue of which I consider the committee should be aware.

In March and June 1995 I met with Mr Mark Nevill MLC and then with him and Mr Julian Grill MLA. At the second meeting and in the presence of my deputy, Mr Nevill said that I was wrong in relation to my decision regarding Dr Rindos and that he intended to use parliamentary privilege "to expose me". He warned me that there was "plenty more to come out." These statements were made with a demand that I fund Dr Rindos in a position at Edith Cowan University. Despite those threats I refused to agree to do so. That Mr Nevill has carried out his threat raises real questions for this Inquiry as to whether parliamentary privilege has been abused. This is particularly so as it appears that some of the public statements he made under parliamentary privilege about members of the University were not checked with the individuals. In one case I understand he has offered to place on the Hansard Record any correction or refutation of the words he attributed to a particular staff member.

I am alarmed that for what may be essentially a political purpose the Committee is prepared to proceed with an Inquiry which will only serve to disadvantage students by the diversion of University funds and resources.

5. Conclusion

In conclusion I repeat that the University will cooperate fully with the Inquiry to achieve a speedy and conclusive end. It is however fully accountable by a variety of other means and participates in this Inquiry under protest for the various reasons I have outlined earlier. In particular the fairness of the Inquiry process as previously proposed is of great concern. The Inquiry is essentially into the propriety of the University's processes and their implementation. However, the proper process cannot be carried through to its logical conclusion as provided for in the University Act of a hearing before the Visitor. Dr Rindos has not availed himself of the specific processes laid down in the University's Act for resolution of this internal industrial dispute. If Dr Rindos does not take this matter to the Visitor then the University must now contemplate doing so. I submit that the process of a Visitorial hearing would be more appropriate because this Inquiry can make no direction to the assistance of either the University or Dr Rindos.

I tender notes of my comments to you this morning and will as the inquiry progresses submit such material as may be relevant to your deliberations.

Professor Fay Gale
22 April 1996<