Exclusive: Legal advice of regulator overreach withheld from ANU council
By Jason Koutsoukis
Advice that the university regulator’s interventions were unlawful was withheld from council while it voted to voluntarily submit to the conditions.
Australian National University interim vice-chancellor Rebekah Brown allegedly withheld legal advice that confirmed the higher education regulator had no power to intervene in the selection of the university’s next chancellor.
In an email obtained by The Saturday Paper that was sent to Brown and copied to all members of the university council, then chancellor Julie Bishop laid out in precise chronological detail what happened to advice Brown commissioned from former High Court justice Patrick Keane, KC.
Brown concealed the advice from university council members, Bishop wrote, as they debated whether to accept a voluntary undertaking with the regulator, the Tertiary Education Quality and Standards Agency (TEQSA), that would significantly restrict the process by which the council could appoint Bishop’s replacement.
The university council voted to accept the undertaking on April 21. The undertaking gives TEQSA the right to appoint the chair and two independent members of the panel that would select the ANU’s next chancellor, and required that any council members sitting on that panel be approved by the regulator. If the council rejected the panel’s preferred candidate, it was required to provide TEQSA with written reasons for doing so.
The Keane advice, received four days earlier, said TEQSA lacked the statutory authority to impose such conditions and that any attempt to do so “would be susceptible to a successful challenge” in the Federal Court. Council members were never made aware that the Keane advice existed.
The email is at the centre of a governance crisis that has consumed Australia’s peak research university over the past two years.
Since the appointment of Genevieve Bell as vice-chancellor in January 2024, the ANU has lurched from scandal to scandal: a $250 million restructure known as Renew ANU that was vehemently resisted by staff and students; a $1.8 million bullying investigation led by former inspector-general of intelligence and security Vivienne Thom that found no disclosable misconduct; allegations of a freedom of information cover-up orchestrated by interim vice-chancellor Brown; the resignations of Bell and Bishop; and the mass resignation of five university council members who quit in protest at what they described as TEQSA’s unlawful intervention into university affairs.
Bishop’s email to Brown, dated May 3 and sent from Bishop’s chancellor email account to Brown’s university address, opens with a reference to a meeting the previous Friday at which Bishop says she raised a “number of concerns about matters at the ANU”.
It is what happened after that meeting, specifically Bishop’s discovery that Brown had commissioned and concealed advice from a former High Court judge, that drives Bishop’s escalating fury in the email.
According to Bishop, she asked Tom Fletcher, a partner at national law firm MinterEllison, which provides legal advice to the university on a semi-regular basis, to provide a timeline of instructions from Brown’s office regarding the procurement of advice from Patrick Keane.
On April 14, Brown provided Fletcher with a copy of a TEQSA letter to pro-chancellor Larry Marshall, attaching the proposed voluntary undertaking.
The following day, April 15, Brown met with Fletcher and the university’s deputy general counsel, Russell Wilson.
At that meeting, Fletcher recommended that urgent senior counsel advice be sought – specifically from Keane – particularly if the council wished to consider whether TEQSA had the power to impose conditions should the council decline to give the undertaking voluntarily. Brown instructed Fletcher to proceed.
On April 16, MinterEllison provided a brief to Keane. On April 17, a summary of Keane’s advice was emailed to Wilson and another university officer, Yana Potrebica. The advice, as summarised by MinterEllison, was as follows:
“1. TEQSA does not have the power to impose a condition to the effect of the voluntary undertaking, if it is not agreed to voluntarily.
“2. The conditions that may be imposed by TEQSA under s32 of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) are not at large. Section 32 includes examples of the kinds of conditions that TEQSA may impose but for the most part the examples are directed to addressing concerns about standards of accreditation for particular courses.
“3. A condition to the effect of the proposed voluntary undertaking is not a condition of the kind contemplated by s32 of the TEQSA Act.
“4. If TEQSA purported to impose a condition of that kind, it would be susceptible to a successful challenge.
“5. Notwithstanding this view, a voluntary undertaking on terms that are acceptable to the University is a sensible approach to avoid an escalation of the matter.”
The same day that summary was received, Larry Marshall, the ANU pro-chancellor, convened an informal meeting of council members, including Brown.
According to Bishop, at that meeting members were told that the only legal advice available was that of the university’s general counsel, Philip Harrison, dated April 13, and the views of university council member Wayne Martin, KC, a former chief justice of the Supreme Court of Western Australia. Brown, Bishop alleges, said nothing about the advice from Keane.
“You did not inform Council that you had instructed MinterEllison to engage Senior Counsel to urgently provide advice to Council on the matters being discussed that day,” Bishop wrote.
At a further council meeting on April 20, members were allegedly again not told that Keane’s advice had been sought or received. The council voted on April 21 to accept the voluntary undertaking.
In her email, Bishop’s assessment of Brown’s alleged conduct at this point is withering: “It appears inconceivable that Russell Wilson or Yana Potrebica failed to forward the summary of Keane’s advice to you or advise you of the advice, given their awareness of the significance and urgency of the Council discussions at that time.”
When the council met again on April 24, Bishop says she asked “several times” whether any council member had received legal advice on the question of TEQSA’s powers, but Brown remained silent.
“You did not reveal at that time that you had instructed that Patrick Keane KC be engaged and that formal advice was pending,” Bishop wrote.
On April 26 Bishop copied Brown, Marshall and general counsel Harrison on an email with Wayne Martin, asking Brown to confirm “what I had understood from the Council meeting of 24 April that no external legal advice had been sought or obtained on behalf of the University”.
Harrison replied that no external advice had been sought and Marshall replied that he hadn’t felt “the need for additional expense”. There is no suggestion either knew about the Keane advice.
“You replied by email again on 27 April advising that you had sought advice from MinterEllison ‘a couple of weeks ago when Larry first raised this request from TEQSA’ but that you did not recall saying on Friday that you had not sought advice and that if you did, it was a ‘mistake’ and suggested arranging a meeting for me with Tom Fletcher,” Bishop wrote in her email to Brown.
When Bishop spoke with Fletcher on April 27 on an unrelated matter, she wrote that “in passing, Mr Fletcher mentioned that you had instructed him to engage Patrick Keane KC to advise Council on the TEQSA voluntary undertaking”.
Bishop was provided a copy of the Keane advice later that evening. On April 28 she forwarded it to pro-chancellor Marshall, Harrison and Martin, and then to the full council on April 29. According to Bishop, the reaction among council members was one of serious alarm.
“Members have advised me that Council’s deliberations would have been far more informed and it is likely that they would have voted differently or adopted a different course of action had that advice, particularly regarding the possibility of a Federal Court challenge, been made available to them,” Bishop wrote.
Describing the withholding of the Keane advice as “troubling” and the circumstances as requiring urgent explanation, Bishop told Brown she had been asked to seek legal advice as to “whether ANU has in fact agreed to an unlawful selection process through TEQSA’s coercion or overreach, and whether it is open to the Council to resile from the ‘voluntary’ undertaking given to TEQSA”.
Bishop finished the email with a request for Brown’s explanation “by Monday afternoon 4 May 2026”.
In response to questions from The Saturday Paper, a spokeswoman for the ANU refused to say whether the Keane advice was supplied to council before its vote but defended Brown’s actions.
“The Interim Vice-Chancellor, Professor Rebekah Brown, has acted appropriately, responsibly and transparently.
“The ANU Council had legal advice before it agreed to a voluntary undertaking with TEQSA to appoint the next Chancellor. That was in the context of TEQSA having major concerns about the quality of governance and decision making undertaken by the Council in recent years.
“The actual appointment decision remains one for the Council, pursuant to section 32 of the ANU Act 1991.
“Legal advice about this was available to, and considered by, the Council. Suggestions that the IVC ‘withheld’ legal advice are incorrect and not relevant to Council’s decision. Council agreed that a largely independent panel was the most appropriate means to provide confidence in the selection process, given the major concerns held about the Council’s past performance.”
On the evening of May 6, Martin emailed Larry Marshall a forensic dismantling of the legal basis for the voluntary undertaking being demanded by TEQSA and requested that his views be conveyed to the council meeting the following day, which he was unable to attend.
By this time, Julie Bishop had also sought advice from the law firm Clayton Utz.
“It is now clear beyond argument,” Martin wrote, “that the Council has received legal advice to the effect that TEQSA’s various demands with respect to the Council’s performance of its statutory obligations exceed the powers conferred upon TEQSA by the TEQSA Act.
“This advice has come from Pat Keane AC KC, a former judge of the High Court and Chief Justice of the Federal Court, University General Counsel, and a national law firm [Clayton Utz]. The Council has no advice to the contrary. In my view there is no basis upon which the Council can fail to act on that advice.
“The demands imposed by TEQSA by the use of coercive threats of unlawful conduct, if acceded to, would prevent the Council from performing its statutory obligations. Acts taken in excess of power are unlawful, and are often referred to by lawyers as an abuse of power, terminology which seems particularly apt to the present circumstances.”
In Martin’s view, there was “only one course of action open” to the university: advise TEQSA that its demands exceeded its authority, withdraw the voluntary undertaking with respect to the chancellor appointment, and proceed to appoint both the chancellor and vice-chancellor through the council’s usual processes.
On the question of what to do if TEQSA pushed back or threatened to impose conditions on the university’s registration, Martin was equally clear: “We should immediately commence proceedings for urgent injunctive relief.”
Martin added a pointed observation about MinterEllison, the firm that had been advising the university throughout the crisis. According to Martin’s note, the firm had been recommended to the university by TEQSA – which would be the university’s opponent in any court proceedings.
“If such proceedings are commenced, the University should not be represented by Minter Ellison. I understand that they were recommended to the IVC by TEQSA, which will of course be our opponent in any proceedings,” Martin wrote.
The Clayton Utz advice, delivered to Bishop on May 5, three days before her resignation, confirmed and extended the conclusions reached by Keane.
Commissioned to assess TEQSA’s powers in relation to both the chancellor and vice-chancellor appointment processes, the firm concluded that the voluntary undertaking represented “a significant overreach of the powers available to TEQSA under the TEQSA Act”.
TEQSA’s attempt to control the composition of the selection panel, restrict which candidates could be considered, and require the council to provide written reasons if it rejected the panel’s preferred candidate were, in Clayton Utz’s assessment, not conditions of the kind contemplated by the TEQSA Act and would be susceptible to a Federal Court challenge.
The firm also noted that the Keane advice had been obtained on April 17 and “was not disclosed to Council prior to the decision making in relation to the Chancellor Appointment Process”.
It outlined a clear set of next steps available to the council: resolve to rescind the voluntary undertaking, inform TEQSA of that decision, and proceed immediately to appoint the next chancellor through its own processes.
If TEQSA responded by seeking to impose conditions on the university’s registration, Clayton Utz advised that the ANU could seek urgent injunctive relief. The university council never acted on that advice.
The concern over TEQSA’s conduct in relation to ANU was not confined to the ANU’s own council.
The Saturday Paper understands that TEQSA’s behaviour was discussed at length at the most recent meeting of the University Chancellors Council last month.
The Australian Financial Review reported this week that Universities Australia chief executive Luke Sheehy would use a keynote address in Adelaide on Thursday to warn that TEQSA’s intervention at ANU had rattled the higher education sector.
“If the sector isn’t overregulated already, it’s getting dangerously close,” Sheehy said, according to a preview of the speech seen by the AFR. “Accountability and overregulation are not the same thing. And right now, our sector feels the balance is wrong.”
The Saturday Paper understands that TEQSA’s chief executive, Mary Russell, sent Bishop up to 65 letters over the past 12 months.
“If that is true, then that is more than one letter a week from the regulator – I think I have received one in the last 12 months confirming the renewal of the university’s licence,” one university vice-chancellor tells The Saturday Paper this week. “That is an incredibly onerous burden and I would struggle to see how any one institution could meet such demands being placed on it. It’s alarming.”
There is also growing concern over why TEQSA is continuing to withhold an independent compliance assessment of ANU that it commissioned from former Australian Public Service commissioner Lynelle Briggs, at a cost of $220,000.
An adverse compliance assessment could be used by TEQSA to take the unprecedented step of forcing a spill of the entire university council.
On January 28, Briggs wrote to Mary Russell requesting an additional 10 days to finalise what she described as a 98-page draft report. That would mean her report has been in TEQSA’s hands for at least three months.
TEQSA did not respond to requests for comment.