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Thursday, 15 June 1989
Page: 4185


Senator COLSTON(10.59) —I intend to speak to the Senate this evening in my role as one of the Senate's representatives on the Council of the Australian National University. During my comments, I shall, at times, refer to that university as the ANU. Honourable senators would be aware that the other representative of the Senate on the Council of the ANU is Senator the Hon. Peter Baume, who previously held several ministerial positions, one of which was Minister for Education. The Council is the ANU's chief decision-making body on a wide range of administrative matters. Its total membership is 44 which comes from a wide background as specified in the Australian National University Act. In general, the Council meets each month apart from those months when the scheduled meeting date is part of a university vacation. For the purposes of my later comments, I should outline that the normal procedure is to hold Council meetings on Fridays and to begin at 9.30 a.m. Sometimes the Council's business has concluded by about lunch-time. On those occasions when that does not happen, a session of one and a half to two hours after lunch is usually long enough for the Council's business to be concluded.

A meeting of the Council was held last Friday, that is, 9 June. A glance at the agenda revealed that it would be a long meeting. Yet it would not have been expected by many that the meeting would not conclude until shortly before 5 p.m. Certainly, it was the longest meeting of the Council which I have attended.

The matter that I wish to report upon is a proposal which was discussed last Friday to establish an Elizabethan theatre and associated buildings on the campus of the ANU. At first sight such a proposal may seem to have considerable merit. But, when it is realised that the project requires the sublease of part of the land which has been leased to the university, there may be grounds for second thoughts. That sublease would pass to a private developer who would build not only a theatre but also four to five shops, a restaurant and a motel with approximately 80 rooms, referred to in the developer's proposal as an accommodation block. The land and buildings are to revert to the university after 40 years.

Last Friday's Council meeting was not the first occasion on which this matter was mentioned. In August 1987 the Vice-Chancellor reported to the Council about a proposal to build an Elizabethan theatre. A cost of $750,000 was mentioned. The Vice-Chancellor said then that the proposal had not developed to a stage where it could be put before the Council. However, he did say:

I would want to say to the Council that our experience with the Arts Centre, which is still encumbered by debt, convinces me that we need to be very sure of the figures before we consider proceeding in any formal way.

In October 1988 the building and grounds committee reported to Council that it approved the principle of the siting of an Elizabethan theatre complex on the campus. It was at this stage that a commercially sponsored development, much larger in scope than the original proposal, was first before the Council. It was agreed by the Council that, with some important caveats, negotiations on the matter could continue about the value of the site, concessions for the ANU and protection for the university in the event of failure of the venture.

I shall now outline the proposal which was put to the Council by Hathaway Productions Pty Ltd, which I shall refer to as Hathaway Productions. Hathaway Productions proposes to construct and operate a replica of Shakespeare's second Globe Theatre. The replica would seat 1,200 patrons. The proposal is that it will be built on university land subleased to Hathaway Productions. Hathaway Productions states that the Globe Theatre will cost $2.5m for construction and fit-out. The company makes it clear that it expects that subleased land will be made available at no cost or for nominal rental. In relation to the location, the company stated:

A perfect location for the Globe has been identified (from 14 possible sites) south of the cross road to the University Staff Centre and abutting the boundary of the University crown lease nearer to Lake Burley Griffin. As the original Globe was next to the Thames, a water frontage is particularly appropriate.

I interpose that any developer would consider a frontage to the water of Lake Burley Griffin to be, as the company states, a perfect location. One of the beauties of Lake Burley Griffin is that development has, in the main, been kept away from its foreshores. Whether or not this is university land, any commercial development along the foreshores of Lake Burley Griffin must be carefully investigated. What is the problem with just one development? The problem is that it is a foot in the door. If Canberra residents want access to the lake to remain freely available to the people, they should consider this matter carefully.

I return to Hathaway Productions' proposal. The company states that it will fund a chair of Shakespearean studies and will provide an annual prize for the best essay on Shakespeare in the English Department. The university is to have use of the theatre for an unspecified percentage of time at no cost for teaching and performance. Hathaway Productions will also construct a museum at a cost of $3m and provide four to five shops, called retail outlets in the company's proposal. A restaurant will be built and the cost of the restaurant and the shops will be about half a million dollars. What the company refers to as an `accommodation component' will be built for $3m. In papers other than the papers containing the company's proposals, this component was referred to as a `three star motel'. At the end of 40 years, the subleased land, the theatre and all buildings would revert to the ANU.

The company summarises the benefits to the ANU as follows: a very high profile theatre, unique in the world for performances, teaching and research; a chair of Shakespearean studies; access to theatre time and to the museum for education and research; a flow of scholars and cultural tours to the university, enhancing its international standing; and full ownership of the entire complex, as a going concern, at the end of the term.

These possible benefits should not be disregarded. On the other hand, there are many problems associated with the proposal. The ANU's finance committee is far from convinced of the viability of the project. It is generally accepted that the theatre would not pay its own way and it and the Shakespearean chair would have to be financed from motel profits. No matter how tightly a contract may be drawn, the university would have to be absolutely certain that it would not, at some time in the future, be faced with a financial burden caused by the failure of the project.

A second matter to consider is whether Canberra needs a 1,200-seat theatre or what the addition of such a facility will do for the viability of other theatres in the national capital. And, if a new theatre is necessary, should it be a replica of the Globe Theatre? Of course, it will not be a true replica. For a start, I imagine electricity will be used for lighting-a convenience not available in Shakespeare's time. But, even so, if the structure should replicate the Globe internally, why should we not consider an external structure which is architecturally Australian? After all, this new Parliament House in which we now operate is not built as a replica of the provisional Parliament House or of the House of Commons at Westminster.

Another problem is whether land allocated for the university should be passed over to a private company to build a motel, a restaurant and shops. I commend those universities which raise funds through research activities and through the provision of services by way of contract. But should a university raise funds or receive an endowed chair by selling off or forgoing for a lengthy period real estate which forms part of its campus?

Another important matter that must be considered is whether the ANU is legally able to sublease its land to allow Hathaway Productions to proceed with its proposals. The land forming the ANU's campus is held under a lease granted pursuant to the Australian National University (Leases) Ordinance 1967. Under clause 1 (a) of that lease, it is stated `that the land hereby leased shall be used for university purposes only'. I understand that the ANU (Leases) Ordinance 1967 has now been passed to the Australian Capital Territory Administration and thus has the status of an Act. Nevertheless, the agreement was made between the university and the Commonwealth.

The ANU's solicitors have provided an opinion which casts doubt on the ability of the university to sublease its land for the purpose described in Hathaway Productions' proposal. In part, that opinion states:

In summary then, I believe that the proposed sublease is not consistent with the above 1 (a) covenant of the University lease in perpetuity.

In explaining his conclusion, the solicitor stated:

I come to that conclusion principally because the provision of the motel and of the restaurant, the retail shops and to some extent the restricted use of the theatre of the University, taken in conjunction are, in my opinion, sufficient to take the whole project outside the permitted use of the University's land.

It is possible that the whole project should not have proceeded as far as it has because of the legal impediments. The university's solicitor also made other comments which, though strictly not of a legal nature, are quite pertinent to the whole project. The opinion carried the following comments:

Apart from the question of ultra vires, the project also has political and public comment implications for the University of which you are aware. It must be expected that the provision of a large (by Canberra standards at least) theatre, a major restaurant and a significant motel on the University campus to be run along commercial lines, will give rise to a number of objections, not the least from commercial operators of similar Canberra facilities who believe that the promoters of the Globe Theatre project will be receiving an unfair advantage in relation to establishment costs.

The other matter of some concern is the sensitivity of the site itself. Clearly there will be design and siting implications to be considered and the possibility of objections from public interest groups on this score.

So what did the Council of the ANU do when faced with the problem of whether to proceed with the proposal? This was the last matter to be discussed last Friday. Before it was discussed, some councillors left for a variety of reasons, but most of those who did leave did so because of transport bookings they had made, probably on the assumption that the meeting would not last so long. A great deal of discussion ensued without a formal motion before the Council. Eventually the Vice-Chancellor moved:

In view of the advantages to the academic community and to Canberra of the proposed Globe Theatre development, Council resolves to pursue the matter by:

1. Inviting the Board of Faculties to advise Council on the proposal for a Chair of Shakespearean Studies;

2. Inviting the Buildings and Grounds Committee to comment on the project as presently proposed;

3. Inviting the Vice-Chancellor to advise the Council on ways (if any) that consideration of the proposal may continue in the light of legal advice that the proposal in its present form is inconsistent with the clause 1 (a) of the lease made under the ANU (Leases) Act 1967;

4. Advising Hathaway Productions that subject to the Council being satisfied on the matters resolved above, the University will invite Hathaway Productions to carry out a detailed assessment of the costs prior to final consideration by the Finance Committee and Council.

The motion was put to a vote and carried by 12 votes to 11. I know of at least one member of the Council who was present and who did not vote, and there may have been another one or two who abstained. There is no doubt that a quorum was present. With two vacancies on the Council, the quorum was 21. But the fact is that only 23 from a possible 37 who were present at some stage last Friday cast a vote for or against the Vice-Chancellor's motion. For a project of this magnitude to be carried by one vote when so many councillors had to leave due to time constraints is, to say the least, most unfortunate.

Last Friday evening I heard on the Australian Broadcasting Corporation radio news, scarcely an hour after the Council's narrow adoption of the Vice-Chancellor's motion, that the Australian National University Council had given the go-ahead for the proposed Globe Theatre development on the foreshore of Lake Burley Griffin. That is incorrect. Mr Jim Hutchins, a director of Hathaway Productions, was reported on the same radio service as saying that construction could be under way in about three months.

Quite simply, that will not occur. The next step is for Council to consider three specific matters as outlined in the Vice-Chancellor's report. After that, Hathaway Productions could be invited to carry out a detailed assessment of costs for submission to the finance committee and to Council. Even then the project may not proceed because of a number of obstacles. The most significant of these is the legal matter. I expect that if a final decision were made by the university to proceed with the project, it could be subject to a legal challenge. If that challenge were upheld, who would have to bear the legal costs-the person or persons initiating the challenge, the ANU or Hathaway Productions?

In addition to the legal doubts in relation to the lease, a particular subsection of the Australian National University Act, still very much in Commonwealth hands, must be taken into account. In part, section 26 (2) states:

The Council shall not, except with the approval of the Governor-General, alienate, mortgage, charge or demise any lands, tenements or hereditaments of the University, except by way of lease for any term not exceeding 21 years.

I presume any approval of the Governor-General would be made on the advice of his Ministers-that is, Ministers of the Commonwealth Parliament.

I have earlier mentioned the difficulties the ANU's finance committee had about the viability of the project. Swift or glib talking by Hathaway Productions will not satisfy that committee. Hard data showing absolute viability will be essential before the committee and, in turn, the Council will be satisfied.

I also mentioned the actual need for another theatre in Canberra or a theatre complex as outlined by the promoter. Will existing theatre proprietors, restaurateurs and motel proprietors remain silent if it appears Hathaway Productions is receiving favoured treatment in relation to the land it wants to sublease? Will public interest groups allow development to proceed on such a sensitive site? Knowing the way in which concerned citizens of the Australian Capital Territory (ACT) express their views, I doubt that they will sit back and allow the project to proceed unimpeded.

One other matter may or may not be important but I consider I should mention it this evening. The business name ``Hathaway Productions'' is registered in the ACT. I have, however, referred to Hathaway Productions on a number of occasions as ``the company''. In fact, Hathaway Productions' proposal was submitted with a cover sheet listing the proposer as ``Hathaway Productions Pty Ltd''. There is, however, some doubt whether Hathaway Productions is actually incorporated in the ACT.

I could have raised further matters in relation to the project tonight. Nevertheless, I have said enough to acquaint honourable senators of what is an important matter to have come before the Council of the ANU.