Conflicts of Interests – University Council

Policy Corporate Governance Conflicts of Interests – University Council

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Intent

This policy outlines procedures for resolving conflict-of-interest issues related to a member of Council, or to a member of a Committee of Council, acting in that capacity.

Scope

This policy applies to a member of Council, or to a member of a Committee of Council (including a Council appointed external member).

Definitions

In this Policy:-

Act means the James Cook University Act 1997 (Qld).

Associate means:

(a) a Spouse, Sibling, Parent or Child of a Member or a person ordinarily resident in a Member’s household;

(b) an entity of which a Member or a Member’s nominee is a shareholder, member or officer;

(c) a business partner of the Member;

(d) an employer of the Member; or

(e) any other person or entity who could be advantaged (directly or indirectly) by the improper use of a Member’s position as a Member or information acquired by the Member because of that position.

Child includes natural child, stepchild and adopted child.

Circularised Resolution means a decision of the Council or a Committee of Council that has been resolved by the required number of Members outside of an ordinary meeting.

Committee means any committee, sub-committee, working party or like group.

Conflict of Interests has the meaning set out in Clause 1.1 of this Policy.

Council means the Council of James Cook University.

Material Personal Interest has the meaning set out in clause 1.2 of this Policy.

Meeting means:-

  • a meeting of the Council or a Committee of Council; or

  • a deemed meeting of the Council or a Committee of Council as a result of a Circularised Resolution.

Member means a member of the Council or a member of a Committee of Council (including a Council appointed external member).

Parent includes natural parent, stepparent and adoptive parent.

Representative Member means a Member who is appointed or elected by reason of their being either the chairperson or president of a body connected with the University, or elected by a class of persons connected with the University. Accordingly “Representative Member” includes:-

(a) The chairperson of the academic board; and

(b) Members elected to the Council pursuant to section 15 of the Act.

Representative Body means, in the context of a Representative Member, the body or class of persons with whom the Representative Member is associated for the purpose of that Member’s appointment to Council.

Sibling includes natural sibling, stepsibling and adopted sibling.

Spouse includes husband, wife and de facto partner.

Policy

1. Overview

1.1 This Policy deals with the resolution of conflict-of-interest issues so far as those issues relate to a Member acting in that capacity. For the purposes of this Policy a Conflict of Interests arises where a Member has, in relation to an issue under consideration by Council, by a Committee or by that Member when exercising a delegated authority:-

  • a Material Personal Interest;

  • a fiduciary obligation to a person or organisation other than the University; or

  • any other conflict between a Member’s personal interests in that issue and the interests of the University.

1.2 For the purposes of this Policy a Member has a Material Personal Interest in an issue if the Member has, or should reasonably have, a realistic expectation that, whether directly or indirectly, the Member or an Associate stands to gain a benefit or suffer a loss, depending on the issue’s outcome. However, a Member does not have a Material Personal Interest if that interest is merely:

  • as a member or officer of a non-profit, charitable or religious organisation involving no personal gain or loss to the person; or

  • as a member or officer of another entity in which the person does not have a personal financial interest.

Example: A Council member derives income from a company which has tendered for provision of goods or services to the University. That member has a conflict of interests.

With respect to benefits personally gained or losses personally suffered by a Representative Member, a Representative Member has a Material Personal Interest only when that Representative Member stands to gain a benefit or suffer a loss to an extent greater than other members of the Representative Body stand to gain or suffer, in the ordinary course.

1.3 Where a Member is also a staff member of the University, and an issue arises affecting the Member/staff member in the latter capacity, the issue shall be resolved according to the provisions of the Code of Conduct (for staff) rather than this policy.

1.4 Where an issue arises involving a Member/staff member in both capacities, regard shall be had to both this Policy and the Code of Conduct (for staff) in resolving the issue.

1.5 Section 10 of the Act creates a positive obligation on a Member of Council to act in the best interests of the University at all times. This section provides that:-

“the Council must act in the way that appears to it most likely to promote the University’s interests”.

1.6 Section 10 of the Act is consistent with Section 26A of the Act which provides that:

“(1) A member has the function of ensuring the Council and/or Committee of which they are a member performs its functions and exercises its powers appropriately, effectively and efficiently; and

(2) in performing the function, a member –

(a) must act honestly and in the best interests of the University

(b) must exercise reasonable skill, care and diligence;

(c) must disclose to the Council and/or Committee any conflict that may arise between the member’s personal interest and the interests of the University; and

(d) must not take improper use of his or her position as a member, or of information acquired because of his or her position as a member, to gain, directly or indirectly, an advantage for the member or another person.”

1.7 Reference should be made to clause 4 of this Policy dealing with Representative Members.

2. Exclusion from Meeting or Decision-Making Process of a Member with a Conflict of Interests

2.1 A Member who has a Conflict of Interests in an issue to be considered at a Meeting:-

  • must disclose the Conflict of interest as soon as is practicably possible; and

  • must not be present at or take part in the Meeting while the issue is being considered or voted on unless authorised under clause 4 of this policy.

2.2 The disclosure required under clause 2.1 must be given:-

  • where the Conflict of Interests arises at a Meeting, then at the Meeting;

  • otherwise, as soon as practicable after the Member becomes aware of the conflict. In the case of a meeting of Council notice should be given to the University Secretary. In the case of a Committee meeting notice should be given to the Secretary of the meeting, or in the absence of the Secretary, the Chair.

2.3 A Member who is excluded from a Meeting under clause 2.1 must not be in the place where the Meeting is being conducted, including any part of that place set aside for non-Council-members attending the Meeting as observers or in any other capacity.

2.4 A Member who is excluded from a Meeting under clause 32.1 must not seek, directly or indirectly, to influence the outcome of any deliberations by the Council, the Committee or any of the officers of the University in relation to the issue.

Example: A Member excluded from a Meeting because of a Conflict of Interests on an issue must not arrange for a third person to lobby another Member on the issue.

2.5 If:

2.5.1 a Member discloses circumstances which might (but in that Member’s opinion do not) establish a Conflict of Interests; or

2.5.2 in the absence of any such disclosure, another Member informs the Meeting that it is that other Member’s opinion that a Member has a Conflict of Interests which has not been disclosed, the Members may (after hearing from the Member alleged to have the Material Personal Interest) resolve by majority that a Conflict of Interests does exist. A resolution to that effect imposes the same obligations on the affected Member as would apply had that Member disclosed a Conflict of Interests in relation to the issue.

Example: The business before a Human Resources Committee is a change to the remuneration of staff. Human Resources Committee includes a staff member. The Human Resource Committee may resolve that the staff member has a Conflict of Interests.

2.6 To avoid doubt, Members are subject to a positive duty to inform the Meeting when that Member opines that another Member has a Conflict of Interests which has not been disclosed.

2.7 A Member who has declared a Conflict of Interests or been found, by resolution of the Meeting, to have a Conflict of Interests in relation to an issue has no entitlement to information or materials about the other Members’ deliberations on and determinations about that issue, except to the extent that the information is available generally to persons who are not Members and who were not involved in reporting to the Meeting or otherwise assisting the Members in their deliberations on the issue.

2.8 A Member who has a Conflict of Interests in an issue to be considered by Circularised Resolution or by delegated authority:-

  • must disclose the interest as soon as is practicably possible; and

  • must not take part in the consideration of the issue or the exercise of the delegated authority.

3. Non-Application of Policy Where Member’s Participation Approved by Council or the Committee Despite Conflict of Interest

3.1 The restrictions set out in this Policy do not apply if the Members present at the Meeting have passed a resolution by majority that -

  • specifies the Member, the interest and the issue; and

  • states that the Members voting for the resolution are satisfied that the Conflict of Interests should not disqualify the Member from participating in the deliberations and voting on the issue.

3.2 For the purpose of clause 3.1, a Member who has a Conflict of Interests must be absent from discussion and voting on the motion.

4. Representative Members

4.1 As with other Members, Representative Members have an overriding duty to act in the best interests of the University.

4.2 Representative Members may participate in deliberations, and vote upon issues concerning their Representative Body without the need to declare an interest or obtain permission to participate and vote.

4.3 Representative Members may participate in deliberations and act in a way which is consistent with the interests of their Representative Body except where to do so would, to the knowledge of the Member, not be in the best interests of the University.

4.4 Representative Members must respect the confidential deliberations of the Meeting attended and any information and documents provided to the Representative Member in connection with that Meeting. A Representative Member must not disseminate confidential information or confidential documents to their Representative Body without the prior express permission of Council or the Committee.

4.5 The Chairperson of a Meeting may require that a Representative Member give a written undertaking (or other form of assurance satisfactory to the Chairperson) under which the Representative Member accepts the obligation of confidentiality attaching to the information or documents in question prior to distribution to that Member of confidential information and/or confidential documents that affect the Representative Body of the Representative Member.

5. Members Not to Use Information for Personal Gain

A Member who has received information through membership of the Council or of a Committee must not seek to make use of that information, or their position as a Member, to gain, directly or indirectly, an advantage for the Member or another person.

Example: Council has resolved to establish a new campus at a particular site but the information is not public knowledge.

In these circumstances it would be an improper use of information on the part of a Member to use this information and acquire land adjoining the site of the proposed new campus in anticipation of obtaining a substantial capital gain resulting from the land’s proximity to the new campus.

6. Standing Declarations

In addition to the requirement at all meetings of Council and its Committees for Members to declare all Conflicts of Interests, Members are required to make a standing declaration, at the time of joining the Council or the Committee, in respect of any registerable interest of the Member where the Member may potentially gain or derive a benefit.

These declarations would form a confidential register to be maintained by the Secretary to Council and updated on a regular basis or as new Members are appointed.

7. Assistance

Where a Member is in doubt as to whether or not a Conflict of Interests exists, that Member should consult the Secretary to Council as soon as practicable.

Related policy instruments

Nil

Schedules/Appendices

N/A

Related documents and legislation

James Cook University Act 1997

Code of Conduct

Code of Conduct Explanatory Statement

Code of Conduct – University Council

Code of Conduct – University Council Explanatory Statement

Administration

Approval Details

Policy Sponsor:

Vice Chancellor

Approval Authority:

Council

Approval date:

19/06/2015

Version no:

V3.0

Date for next review:

10/04/2017

Revision History

Version

Revision date

Description of changes

Author

3.0

19/06/2015

Policy sponsor amended to reflect approved policy framework. Published 25/06/2015

Quality, Standards and Policy

2.0

April 2014

Policy updated and procedure removed from policy

Contact Policy Officer – Governance and Corporate Services

1.0

01/12/2011

Policy established

 

Keywords:

Conflicts of interests, material personal interest