Report of the Senate Working Party on University Companies and Consultancies – October 2002

EXECUTIVE SUMMARY

In November 2001, Senate established a working party in response to concerns raised about the risks associated with the commercial and consulting activities of the University and its staff. The working party, assisted by staff from the Division of Research and Development and the Office of Financial Services, considered an initial report presented to Resources Committee by the then Vice Chancellor in October 2001 together with:

  • the existing structure of University entities and the ongoing relevance of those entities
  • the existing University policies on ‘Establishment of Incorporated Bodies’ and ‘Consulting Activities’
  • the level of insurance coverage for Directors and Officers and Professional Indemnity
  • the processes in place for the management of risks associated with consulting activities

The working party concluded that existing policies relating to incorporated entities and consulting activities were in need of revision and that there was a clear need for a policy on governance of University entities. There was also a clear need to ensure that all commercial and consulting activities of the University were conducted through entities with limited liability and that all commercial activities of the university be properly managed through a holding company to contain and control all other incorporated entities.

An area of considerable concern to the working party was the effective management of the risks associated consulting activities undertaken by University staff. The Division of Research and Development has developed a risk management plan that addresses this concern and this has been endorsed by the working party. In addition, recommendations have been made to ensure effective monitoring and compliance with a revised consultancy policy.

The working party has made fifteen recommendations that together should help to protect the University from the risks associated with commercial and consulting activities and provide a framework for more effective management, control and development of these activities.

RECOMMENDATIONS:

  1. That Senate require all commercial and consulting activities undertaken by the University to be conducted through entities with limited liability.
  1. That Senate approve the attached policy on ‘Governance of University Entities’ (attachment # 1).
  1. That Senate approve the revised policy for “Establishment and Operation of Incorporated Entities’ (refer attachment # 2).

4.That Senate approve the working party’s recommendations with respect to existing University entities.

  1. That the boards of all University entities be restructured in accordance with the revised policy on ‘Establishment and Operation of Incorporated Entities’ and the proposed policy on ‘Governance of University Entities’.

6.That Senate approve the formation of Murdoch University Investments Company Pty Ltd as a wholly owned subsidiary of Murdoch University, to contain and control all commercial and consulting activities of the University.

  1. That Senate request the Vice Chancellor to conduct a comprehensive review of all University entities under the proposed corporate structure to ensure all tax and other issues are properly understood and addressed.
  1. That Senate endorse the establishment of the new position of ‘University Companies Secretary’ to provide company secretarial services to the corporate entities of the University, Resources Committee and Senate working parties as appropriate, and to act as custodian for all material documents associated with University entities.
  1. That Senate endorses the increased insurance cover for Directors and Officers and for Professional Indemnity from $10 million to $20 million.
  1. That Senate request the Vice Chancellor undertake a comprehensive review of the nature and extent of required cover for Directors and Officers and Professional Indemnity insurance to ensure all employees of the University are adequately and appropriately protected with reference to the current and expected future activities of the University.
  1. That Senate endorse the revised policy for “University Consultancies’ (refer attachment # 3) and the risk management measures proposed by the Office of Research and Development.
  1. That Senate endorse the establishment of a centralised ‘Commercial Consulting Unit’ and approve the establishment of Murdoch-Link Pty Ltd.
  1. That all academic staff be required to make an annual declaration of consulting activities stating that they have read and understood the University’s Consultancy policy and have complied with the requirements of that policy.
  1. That Senate requests the University Secretary review the full “Review of University Governance” report and advise Senate of the extent to which the recommendations contained in the report have been considered and/or adopted by the University.
  1. That the working party reconvene in 6 months time to review the implementation of the recommendations contained in this report.

Report of the Senate Working Party on University Companies and Consultancies – October 2002

Background

In October 2001 the Pro Vice Chancellor – Resource Management prepared for Resources Committee a report entitled ‘Risk Management Review of University Companies and Consultancies’. The report noted the need for the University to establish additional sources of income to support the University’s activities, but raised concerns about the potential risks involved. Specifically the report considered:

  • The appropriate make up of the boards of University subsidiaries.
  • Whether the original purposes of University subsidiary companies were still relevant to the University's needs.
  • The need to examine exposure to the University from academics who engage in consultancies or other contractual arrangements.
Whether the current level of insurance for Directors and Officers and Professional Indemnity was adequate.

The report recommended “Resources Committee discuss the issues raised and options suggested to improve the risk management of University subsidiary companies and University consultancies and provide advice to the Senate with respect to the adoption of any option/s”.

In response, Senate resolved at the meeting of 26 November 2001(S/93/2001):

(a)to establish a working party on University companies and consultancies, to investigate the issues brought up in the paper on the Senate agenda and to prepare a review paper providing guidelines on how to effectively manage subsidiaries of the University in line with good corporate governance;

(b)the working party consist of Mr Pett (chair), the Vice Chancellor, Mr Lester and Mr Macpherson – if Mr Lester is not available, the Chancellor be authorised to appoint another person in his place;

(c)the working party be requested to provide a draft paper to the Senate meeting of 8 April 2002 and a final report to a subsequent Senate meeting;

(d)the Director of Finance and the Director, Research and Development assist the working party.

The working party co-opted Professor Robert Forbes from the School of law, who has expertise in corporate law.

Membership of the working party comprised:

Robert Pett (Chair)

Professor Mal Nairn/Professor John Yovich

Malcolm Macpherson

Richard (Dick) Lester

Professor Robert (Bob) Forbes

Clare Innes (Secretary)

Gaye McMath (to assist)

Dr Paul D’Sylva (to assist)

1.Project Scope

In reviewing the terms of reference, the working party developed an action plan to consider the issues and make recommendations to Senate concerning the following matters:

  • The potential risks associated with the existing structure of University entities
  • The relevance of existing University entities
  • An appropriate corporate structure given the current and anticipated future needs of the University
  • The adequacy of the existing policies on ‘establishment of incorporated bodies’ and ‘consulting activities’
  • The need to develop a code of corporate governance to be applicable to all University bodies
  • The adequacy of insurance coverage for Directors and Officers and Professional Indemnity
  • Effective management of the risks associated with consulting activities

During the course of the working party’s deliberations, the Victorian Department of Education and Training released a comprehensive report concerning the “Governance of Victorian Universities”. This report was reviewed by the working party with particular consideration given to the recommendations relevant to the matters noted above.

2.Potential risks associated with commercial and consulting activities

Risks associated with the commercial and consulting activities of the University can be managed and mitigated with the following strategies:

  • The use of entities with limited liability
  • Effective corporate governance
  • An effective policy framework
  • Sound commercial strategies
  • Sound financial management and control
Limited Liability

The use of limited liability companies as vehicles for various University activities such as the commercialisation of intellectual property (IP) can restrict the liability of the University to the extent of its investment in these entities. This is an appropriate risk management strategy, however protection is lost if the University fails to manage the entities as proper companies in their own right and in effect, behaves as if the entities do not exist. To obtain the protection offered by the ‘corporate veil’, the University must ensure the entities are managed and governed as separate legal entities. This includes having proper board meetings that are fully minuted, strategic plans, budgets, forecasts, proper records and separate bank accounts. In addition, the University entities must be properly governed by their directors so that the University is not seen as a ‘shadow director’ effectively carrying out the board’s decision making for the entity.

Effective Corporate Governance

The board’s of University entities need to be established in accordance with good corporate governance principles and include independent directors with the appropriate skills and experience. These measures will ensure the effective management and control of University entities.

The board of directors must clearly understand their role and responsibilities including those with regard to:

  • Commercial objectives
  • Developing strategy and policy
  • Budgeting, planning and performance management
  • Internal controls and management information systems
  • Risk management
  • Reporting to shareholders
  • Ensuring effectiveness of the board

The working party noted the current University practice has been to appoint University executives rather than Senate members or external appointees to the boards of subsidiary companies. This is not consistent with good corporate governance and does not provide the appropriate mix of independence and expertise needed to ensure proper stewardship and control of the entity.

A review of the various incorporated entities (refer below) in which the University has an interest highlighted the need to ensure proper board composition and representation to ensure the University’s interests were properly protected and advanced. The working party concluded that the composition should be merit-based with an appropriate skill set.

To ensure that there is influence independent of management, there should be at least one independent or non-executive director appointed to the board. To ensure there is proper financial control and coordination with the Universities overall financial management, each board should include the University’s chief financial officer (CFO) or nominee. To ensure that each company is properly administered, a properly qualified company secretary should be appointed to each company. At a minimum, each board should have three directors, one independent, one representing the management of the University and the CFO.

The need for a centralised company secretarial service was also noted. Several staff members, none of whom have any formal qualifications or significant experience in this regard, currently share this function. The working party is of the opinion that all University companies should have a common company secretary and that that person should also act as secretary to the Resources Committee. This common company secretary would be responsible for legal / administrative management of companies and would be the custodian of important contracts and documents for the companies, ensuring that such items are not misplaced. This arrangement will provide for more efficient administration, greater consistency and should reduce the risk of anything ‘falling between the cracks’.

The working party recognised that proper corporate governance of all University entities was essential. It asked the Pro Vice Chancellor, Resource Management to prepare a set of guidelines on corporate governance to apply to all University entities and to incorporate these into a proposed new policy titled ‘Governance of University Entities’ (refer attachment #1).

Effective Policy Framework

The University has existing policies in relation to the establishment of incorporated bodies and for consulting activities. The purpose of these policies is to inform, guide and manage the operations of these activities in accordance with the requirements of the University and other relevant regulatory requirements. Policies, however well intentioned, will not achieve the desired outcomes unless they have been developed with a clear understanding of the underlying issues and the University’s requirements. Policies need to clear, straightforward, accessible and easily understood. They also need to be dynamic in the sense that they must be continually reviewed and updated in light of changing circumstances and organisational objectives. University policies will not achieve the desired outcomes if they are not widely embraced.

The working party’s review of the two policies revealed the following:

‘Establishment of Incorporated Bodies’

This policy was first established in February 1999 to:

  • provide a mechanism for the establishment and management of incorporated bodies within the University;
  • encourage staff to make their expertise or services available to the community;
  • limit the University’s liability in respect of incorporated bodies;
  • ensure accountability of University incorporated bodies; and
  • ensure the University meets its legal obligations.

While clear in its intention, the policy does not adequately address the issues of effective corporate governance, taxation, risk management, reporting to shareholders and company secretarial requirements. The policy also requires updating in accordance with the requirements of the Corporations Law 2001 (Cth).

The policy has now been redrafted to address these concerns (refer attachment # 2) and renamed “Establishment and Operation of Incorporated Entities” to better reflect the revised content.

‘Consultancy Guidelines and Policy’

Developed by the Office of Research and Development in 2000, the policy, while comprehensive, is very long, convoluted and lacks clear and concise direction for University staff. In its present form the policy is at risk of being disregarded and misunderstood which will inevitably lead to the University being exposed unnecessarily to risk from non-compliance.

At the request of the working party, the Office of Research and Development has simplified and redrafted the policy and guidelines to take account of these criticisms (refer attachment # 3).

The issues associated with consulting activities are addressed in greater detail in section 6 of this report.

Financial Management and Control
Given the increased risk of exposure to liability in relation to University entities, the following strategies can be employed to reduce this:
  • Ensuring that there are appropriate systems for financial monitoring of University entities;
  • Ensuring competent, reliable, experienced and suitably qualified staff are responsible for financial monitoring;
  • Ensuring timely communication between subsidiaries and shareholders;
  • Ensuring the directors of subsidiary companies independently assess any advice provided by the holding company before implementation and determine such advice to be in the best interests of the subsidiary company;
  • Where a subsidiary is experiencing any financial difficulties then it is obliged to report the matter promptly to the holding company with the holding company required to take appropriate action.
  • Where a subsidiary is insolvent or is near to insolvency then its directors must ensure that it does not incur any substantial debts.
  • Where a subsidiary is insolvent or near insolvent, then immediate action be taken to appoint suitably qualified independent professional advisors to investigate the financial situation and provide advice;
  • Where a subsidiary is insolvent, or near insolvency, appointment of an administrator must be considered;
  • Ensuring the executive directors keep the Board fully informed as to the activities and performance of the company.

The issue of solvency needs particularly careful consideration, as the Board has a responsibility to creditors in this situation as well as shareholders. Further caution needs to be exercised where the entity is in danger of becoming insolvent.

Directors need to be fully aware of their responsibilities in this matter as well as their exposure to personal liability under the Corporations law.

Recommendation 1That Senate require all commercial and consulting activities undertaken by the University to be conducted through entities with limited liability.

Recommendation 2That Senate approve the attached policy on ‘Governance of University Entities’ (attachment # 1).

Recommendation 3That Senate approve the revised policy for “Establishment and Operation of Incorporated Entities’ (refer attachment # 2).

3.The relevance of existing University entities

Attachment # 4 provides details of the entities in which the University has an interest including the degree of ownership (or nature of the association), the extent of ownership by the University, the current directors, the purpose of the company and whether or not it is active. The working party reviewed each of these entities from a risk management perspective with a view to determining whether the purpose for which the company was established was still relevant, and if so, whether any change to the governance and reporting structure was needed.

The tables below summarise the working party’s recommendations with respect to each entity considered.

Subsidiary Companies

/ Working Party Recommendation to Senate
The University Company Pty Ltd
100% owned /
  • Wind up the company once existing consultancies conducted through the entity have been completed, returning the assets to Murdoch University.
  • Establish a new subsidiary company specifically for the purpose of the commercialisation of intellectual property through strategies such as licensing or the establishment of “spin-off” companies. This results in the establishment of a new entity without the ‘historical baggage’ and will ensure that this does not jeopardise the success of new activities.

Subsidiary Companies

/ Working Party Recommendation to Senate
Murdoch Retirement Services Ltd
100% owned /
  • Appoint a Senate member with appropriate skills in property development to act as an independent director and to the board of Chair Murdoch Retirement Services Ltd.
  • Require quarterly reports on the activities and financial performance of Murdoch Retirement Services to be provided to shareholders.

Am-Si Pty Ltd

100% owned /
  • The company is inactive and it is proposed that it be wound up.

Murdoch International Pty Ltd
100% owned /
  • The company is inactive and it is proposed that it be wound up.
  • Retain the company name through registration.

Virtual University of Australia Pty Ltd
100% owned /
  • The company is inactive and it is proposed that it be wound up.
  • Retain the company name through registration.

MS Biotechnology Pty Ltd

56.67% owned /
  • The company is inactive and it is proposed that it be wound up with approval of the remaining shareholders.
  • Attempt to enter into an agreement with the remaining shareholders to protect the University’s interest in the IP and research data accumulated by the company.

Non-Subsidiary Companies

/

Working Party Recommendation to Senate

Murdoch College Properties Pty Ltd
45% owned /
  • Require quarterly reports on the activities and financial performance of Murdoch College Properties to be provided to shareholders.

ACRE: Australian CRC for Renewable Energy
5% owned /
  • No changes to existing directorships or reporting relationships.

Rumen Biotech Pty Ltd
50% owned /
  • The company is inactive and it is proposed that it be wound up with approval of the remaining shareholders.
  • Attempt to reach agreement with the remaining shareholders to protect the University’s interest in the IP and research data accumulated by the company

CRC for Sustainable Tourism
2% owned /
  • No changes to existing directorships or reporting relationships.

Associated Entities