Why is the University of Sydney powerless to stop bullying behaviour in what the public sees as “its colleges”? This has been a constant refrain in recent weeks as the controversy surrounding the behaviour of students at St John’s college has made headlines.

This week NSW Premier Barry O'Farrell gave the Catholic Archbishop of Sydney George Pell the power to appoint St John’s governing council, after he ordered his priests to resign from the board, effectively leaving the college without a council.

But the changes, introduced into the parliament on Wednesday, are just a band-aid solution to resolve the current emergency. The bigger problem lies in the complicated legislative relationships established between the University of Sydney and the churches more than 150 years ago.

It’s time for O'Farrell to introduce major legislative changes that update these relationships and clarify who’s responsible for the colleges.

Shaky foundations

A prime concern of the University of Sydney’s founders was to establish a secular university based on religious tolerance. In the words of primary founder, William Charles Wentworth the university was to be “open to all whether they are disciples of Moses, of Jesus, of Mohamed, of Vishnu, or of Buddha”.

To ensure the secular and educational authority of Sydney University, parliament enacted legislation to establish Church-run colleges in ways that would not challenge the university’s authority. The St Paul’s College Act (1854) was the first and became the model used for the College Acts that followed, including St John’s College.

But the legislators were so concerned with minimising church interference in university business that little was done to describe the nature of the affiliation between the university and the colleges. The word “affiliation” and the phrase “a college of and within the university” were tossed around in the legislation, but their meaning was never pinned down.

This legislative oversight now haunts the modern university. College business remains college business, and the university can only rattle the gates.

Arcane laws and modern universities

Both St Paul’s and St John’s are still governed by what is largely 1850s legislation. There have been some modern amendments, but there is still no legal place for the university in the affairs of either college, and no consideration of how a college-university relationship might work.

At St John’s, the Catholic Archbishop of Sydney is designated by the St Paul’s Act as the “visitor”, a role that provides some external oversight of college affairs. This is why Cardinal Pell recently intervened in College matters. But there is no similar right for the university at St John’s, nor at St Paul’s, Wesley or Sancta Sophia colleges.

By contrast, from the beginning, the Women’s College Act (1889) provided a place for the university through senate appointments on its council and made the university chancellor a “visitor”, which, arguably, allowed for some university scrutiny of college business. It also required at least four women on council showing unusual foresight for the time.

St Andrew’s, officially opened in 1876, repealed its founding Act in 1998 and, among various changes, made the university chancellor a visitor and specified what this meant. The chancellor can tell the college council there is a problem in the “manner in which the college is conducted” and, presumably, keep telling them until something is done. But they can also advise the council when that is needed.

Legal rangle

Still, is a 19th century concept of “visiting rights” really sufficient to consolidate a meaningful legal relationship between the university and the colleges in the 21st century?

The St Andrew’s Act also cleaned up many inconsistencies that still exist in the legislation of other colleges including Sancta Sophia and Wesley College. It modernised language and updated references rather than rely on 19th century conceptions of the university, students and their studies.

With arcane legal language and references one wonders how useful these governing acts are to members of college boards wanting to know the basis of their authority. The public understandably sees a close relationship between colleges and the university, and it is probably time for that relationship to be given a firmer basis.

Wider reforms

In light of recent events, the university should have a say in the governance of the colleges, and in return it might offer the colleges a voice on the university senate.

A closer working relationship between the university and the colleges could be mutually advantageous. As a major public institution the university could offer the colleges much in the way of advice on financial sustainability, risk mitigation, social inclusion, and even the prevention of bullying.

As for colleges, many have successful academic mentoring and student support programs that might be coordinated to include the broader student population and thereby create new, constructive relations with the university.

If Premier O’Farrell is serious in his offer to overhaul the St John’s legislation, he should widen the net and establish a joint college-university-parliamentary working party to examine the legislation governing the six colleges along with the University Act itself.

The aim should be to revisit what 19th century legislators never properly tackled — the relationship between the university and “its colleges”.