Julie Bishop quit as ANU Chancellor last Friday, but not without a parting shot:

“Following unprecedented and co-ordinated interference, the ANU Council is no longer able to discharge its legal and ethical obligations,” she said. “The higher education sector is at a crossroads of regulatory overreach in the governance of our institutions or autonomy and academic freedom.”

The ANU needs to move on from the last few years of drama and disruption. The departure of controversial figures, including Julie Bishop, will help with that process. But her parting shot made a valid point. A TEQSA decision that Bishop is alluding to, while at least in part a by-product of weaknesses in TEQSA’s enforcement mechanisms, was an odd one. It was at most a partial solution to the ANU governance problems identified by TEQSA. Compared to other options it raised more serious legal compliance issues for members of the ANU Council.

The voluntary undertaking

The most prominent “unprecedented interference” is this voluntary undertaking the ANU made to TEQSA about the appointment of a new Chancellor. This was to happen in the lead up to Bishop’s term expiring on 31 December 2026, but will now be brought forward.

What the voluntary undertaking does is set a process by which the Council will accept or reject a recommendation for the new Chancellor.

The recommendation will come from a panel of TEQSA-approved members. The panel will have an independent chair nominated by TEQSA (announced as Peter Coaldrake), two TEQSA-nominated people with experience and expertise in higher education and university governance, an Indigenous person if neither of the earlier two nominees are Indigenous (who appoints this person is not stated, by inference TEQSA) and two members nominated by ANU Council who are “accepted by TEQSA in writing.”

So TEQSA will either appoint or have veto power over all five or six members of the panel.

The panel will develop Chancellor selection criteria, including “key skills, characteristics, behaviours and experiences”. It will specify a merit-based recruitment process, which is provided to the CEO of TEQSA and the Pro-Chancellor of ANU (a deputy chancellor type role). An independent executive search firm will do the legwork.

The Council can provide feedback and advice to the panel. The university will undertake “targeted engagement across the ANU community” and provide that as part of the Council’s advice to the panel.

The panel will shortlist candidates, interview them, and recommend one to the Council.

Within 30 days of receiving the panel’s recommendation, the Council will either notify TEQSA that it will appoint the preferred candidate or, if not, provide written reasons.

Can the ANU legally make this undertaking?

The voluntary undertaking was approved by the ANU Council on 20 April 2026. An initial question has to be whether the Council can outsource selection of the Chancellor in this way.

Under section 32 of the ANU Act 1991 the “Council must appoint the Chancellor of the University. The appointee must not be a student or an employee of the University” (emphasis added).

Section 17 of the ANU Act 1991 deals with delegations by the Council. Section 17(3) says that “the Council must not delegate its power to: (a) appoint the Chancellor, Pro-Chancellor or Vice-Chancellor” (emphasis added).

Technically the Council hasn’t delegated this power, it will still under this process rubber stamp the committee’s recommendation. But in reality it has approved a process where a committee with a majority of non-Council members, who have been chosen by another organisation, will probably choose the next Chancellor.

This is presumably what Julie Bishop was referring to when she said that the “ANU Council is no longer able to discharge its legal and ethical obligations” (emphasis added).

The undertaking is not in my view consistent with the intent of the ANU Act 1991, even if legally it survives on the technicality of how the final approval is made.

What happens if the Council rejects the panel’s candidate?

This technicality means, however, that the ANU Council could still reject the panel’s candidate.

The “voluntary undertaking” in itself has no legal authority. It is not one of the compliance mechanisms set out in the TEQSA Act 2011, although TEQSA has previously used voluntary undertakings as alternatives to other enforcement options.

If the Council refuses to appoint the panel’s candidate then TEQSA is back to square one in its response to ANU issues.

What else could TEQSA have done?

Even within the voluntary undertaking strategy, TEQSA’s approach seems strange to me.

TEQSA’s core responsibility is the application and enforcement of the higher education Threshold Standards, which set out principles that must be adhered to in order to be registered as a higher education provider and offer courses leading to AQF qualifications.

The “introduction” to the ANU voluntary undertaking lists eight concerns about the ANU’s Council and its conduct. TEQSA had notified the Council of these in an October 2025 letter following a previous compliance assessment. Unfortunately the list does not cross-reference the Threshold Standards. But the concerns fall within plausible readings of standards 6.1 on Corporate governance and 6.2 on Corporate Monitoring and Accountability. This requires some reliance on broad expressions like “competent governance oversight” and attending to governance functions “diligently and effectively”.

To align with the listed concerns, TEQSA might have sought an undertaking on information flows to the Council, the processes for assessing the need for or suitability of major ANU policies, how the Council handles conflicts of interest, the Council’s oversight of staff issues, oversight of delegations of power, and the proposed processes for appointing the next vice-chancellor.

But the undertaking does none of these things. Instead TEQSA converted its list of concerns into a single remedy, the appointment of a new Chancellor. While of course that appointment is important to the future functioning of the ANU Council, it does not directly deal with most of the concerns raised – if Bishop presided over poor decision-making it is only because she “had the numbers” on the Council to set the processes and make decisions. The voluntary undertaking leaves all the listed problems on notice to the ANU, which hopefully will prompt adequate responses, but does not set out a process by which positive outcomes will be verified.

The Chancellor selection process was one of the worst options TEQSA could choose. It won’t in isolation solve the stated problems. It is running too close to pushing the Council into breaching the ANU’s legislation, another serious governance failure. As Peter Varghese said, it also sets a “dangerous precedent”. It allows TEQSA to require things not clearly mandated by the Threshold Standards, such as choosing the leaders of higher education providers or setting out in detail how that choice is made.

Other TEQSA options

TEQSA has administrative sanctions it can impose if the Threshold Standards are, in its view, breached. These are to shorten the registration period of the provider or cancel the provider’s registration: sections 98, 100 and 101 of the TEQSA Act 2011. These are examples of the feather or sledgehammer remedies the minister sometimes complains about. A registration shortening would be a further embarrassment to add to the many already suffered by the ANU, but probably not effective in prompting specific actions. The ANU is not so dysfunctional that it should be shut down, ruling out cancelling its registration as a higher education provider.

Another normal TEQSA regulatory path is to impose a condition on provider registration, breach of which can lead to a civil penalty fine. I wrote about these in a submission to a review of TEQSA’s powers last year. There is one general problem with this remedy, which is that the maximum fine is a very low $39,600. Breach of multiple conditions can lead to multiple $39,600 fines, but not enough to be a serious punishment – another feather remedy. And I am not 100% sure that TEQSA can impose a governance-related condition. The most general TEQSA discretion to impose a condition, section 32 of the TEQSA Act 2011, gives examples that relate to academic functions only.

Another option might be an enforceable undertaking under section 119 of the TEQSA Act 2011, which says that the “provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act.” This would require an application to the Federal Court. But again the wording of the TEQSA Act 2011 might create issues, due to the framing of the conditions sections and not clearly stating a positive requirement to comply with the Threshold Standards in their entirety. For example in section 98 (on administrative sanctions) the rules are phrased in the negative, that the provider “failed to meet the Threshold Standards”. Possibly TEQSA doubts about their power to get an enforceable undertaking sent them down the voluntary undertaking path.

Conclusion

The government is already planning reforms both to university governance and to TEQSA’S powers.

Prior to these being enacted some kind of voluntary undertaking might have been the best option for ANU.

But this voluntary undertaking should have been closely tied to specific Threshold Standards and avoided any potential conflict with the ANU Act 1991 (which in any case over-rides the Threshold Standards, which have the lower legal status of delegated legislation).

It’s disappointing, because TEQSA had been a last bastion of the rule of law in higher education policy, which had been in decline for years in the funding system even before the new ATEC era of political and bureaucratic discretion.