Integrity and Accountability
Certain obligations you should be aware of
In the day to day pursuit of University objectives, there are some integrity / accountability obligations that may be more difficult to recognise and require additional vigilance by individuals to ensure compliance.
This includes those due diligence obligations which are underestimated or unknown by an individual decision-maker because they may only arise infrequently, or in unique circumstances. Sometimes, an obligation may arise only because of the specific nature of the activity and the particular people involved.
These obligations are intended to ensure the interests of individuals or groups are negotiated or managed in a fair and transparent way. University policies and procedures are there to assist. Where concerns about “the national interest” are involved and a legislative protection is in place, the obligation is not negotiable and significant penalties may apply.
Being aware of these obligations will help you identify and manage the risks and avoid adverse consequences.
Why do I need to comply?
A failure to diligently meet integrity or regulatory obligations can have serious consequences for you personally, for the University and potentially, for the Australian community.
The consequences of a breach of required standards and laws can vary enormously: from professional embarrassment or workplace investigation of a complaint, through to the possibility of formal charges under Commonwealth or State law; and the possibility of financial penalties, and in extreme cases, periods of imprisonment.
If you are uncertain about a particular situation, please contact the Legal and Risk Branch to discuss.
The below list of integrity and regulatory obligations are not exhaustive, but are intended to promote awareness of some unique risks and provide general information about why they are important.
Conflict of interest
A conflict of interest is when your personal interests conflict with your duties as a University employee. The Behaviour and Conduct Policy requires that you must report any actual, perceived or potential conflict of interest.
The key is appreciating a conflict exists, or may arise in the future, and managing it appropriately.
Failing to declare or properly manage a declared conflict of interest or conflict of duty is a breach of the Policy and could be a criminal offence. The following are examples of what a conflict of interest may look like.
- Allowing a personal relationship to improperly influence a decision
- Receiving a personal benefit by allowing family or friends to improperly access University services
- Without approval, undertaking external work or employment in conflict with an obligation to the University
- Obtaining a service or benefit from a potential contractor that may influence your decision on a contract or tender application
- Accepting a gift from a student and as a result marking their assessment more favourably - if you are offered a gift by a student and feel that accepting that gift could affect your ability to assess the student's work objectively, you should not accept the gift. Please read more about accepting gifts from students.
For more information including how to declare a conflict of interest, please refer to the HR Handbook, the Behaviour and Conduct Policy and the Conflict of Interest Procedure and Disclosure Form.
When properly identified and disclosed, a conflict of interest becomes transparent and can be managed by you and your supervisor. You also reduce your exposure to the risk of complaints, accusations of wrongdoing or an investigation by the Independent Commissioner Against Corruption for maladministration, misconduct or corruption.
If you are the supervisor of someone who declares a conflict of interest involving a foreign national, please note and consider some additional reporting obligations you may both have under the Foreign Influence Transparency Scheme. Significant penalties can apply to those who fail to register a relevant relationship.
Undue influence is when someone, because of their status or position, seeks or is able to derive an outcome that is favourable to them by exerting pressure over you. That pressure is designed to get you to act in a way that is contrary to the University's best interests or your employment obligations, for example, to comply with University policies and procedures.
This is similar to a conflict of interest in that a relationship of confidence or trust exists between the two people, but is different in that the benefit is disproportionate.
The following are examples of undue influence:
- A well-known alumnus seeks to influence the naming of a building under terms that are inconsistent with University policy.
- An industry leader makes it clear to a researcher that funding will only continue if a research outcome is discovered that favours the industry leader's own business interests.
- A highly respected scholar you meet at an international conference offers to collaborate and then suggests you disregard international sanctions that strictly preclude such an arrangement.
Be alert to indicators of possible undue pressure, such as:
- Being asked to meet and discuss business at an unusual or inappropriate time or place
- Being asked to discuss business in secrecy
- Insistent demands that an arrangement be finalised immediately
- Over-stating (catastrophising) the consequences of delay
- Agitation or encouragement to disregard due process
- Resistance to obtaining approvals or seeking advice.
The consequence of undue influence can be damaging to you personally and to the University. If you think that you are being subjected to undue influence, you should refer to the Conflict of Interest Procedure and seek further advice from your supervisor or Legal and Risk Branch.
Succumbing to the pressure of undue influence can undermine your position and credibility and can compromise the integrity of University processes. You risk being accused of wrongdoing and being subject to formal investigation by the University for misconduct or by the Independent Commissioner Against Corruption for maladministration, misconduct or corruption.
If you are the supervisor of someone who declares undue influence involving a foreign national, please note and consider some additional reporting obligations you may both have under the Foreign Influence Transparency Scheme. Significant penalties can apply to those who fail to register a relevant relationship.
Australian consumer law
Australian Consumer Law (ACL) applies to all of the products and services the University of Adelaide offers, sells or promotes. ACL provides protection to consumers by setting rules that all organisations must observe when doing business. These rules are also relevant to any form of engagement the University has with students, as consumers of education services, and may extend to other individuals, contractors and businesses too.
ACL is intended to ensure that consumers:
- Get what they reasonably expect and have paid for
- Are not taken advantage of
- Receive fair terms in any agreed arrangement
- Are protected when the product or service does not meet the standard or quality promised.
For full details about ACL in a university context, refer to the Consumer and Competition Law Compliance Manual.
As ACL applies to University operations broadly, the key obligation for University personnel is to be vigilant and precise in:
- The preparation and presentation of information (e.g. advertising, correspondence, emails, conversations, social media, negotiations and agreement preparation); and
- The expectations you convey when you engage with prospective students or partners.
Be aware that under ACL, you can't rely on disclaimers to overcome any misleading impressions created, that silence or failure to clarify an arrangement can be considered misleading or deceptive, just as statements can be, and that even if exaggerations or misprints are innocent mistakes, this fact alone will not diminish the rights of a consumer.
This also means that you should avoid statements of personal opinion which might be offered as friendly encouragement to a prospective student or business partner but may lead them to form an incorrect view about the outcome of an arrangement they are entering into with the University.
ACL sets an important threshold for a broad range of business transactions in Australia and offers a measure of the integrity of the University’s delivery of goods and services. The consequences of an ACL breach can be significant for the University, including investigations by regulators and hefty penalties (up to $10M). Potential flow-on effects include the imposition by regulators or courts of special conditions or restrictions; damages payouts to affected parties; operational disruption leading to financial losses and reputational damage.
If you are involved in a breach of ACL, or failed to clarify representations made, you may be personally exposed to a penalty up to $500k. You might also be subject to disciplinary action under the University’s Enterprise Agreement; or investigation by other external agencies such as the Independent Commissioner Against Corruption.
ACL is reflected in other regulatory regimes that apply to the University. The Education Services for Overseas Students National Code 2018 requires, as a condition of accreditation, that providers ensure that all marketing and promotional material (including where such material is provided through education agents) complies with ACL.
If you fail to observe obligations under Australian Consumer Law you risk being subject to a complaint to the Australian Competition and Consumer Commission (ACCC) leading to protracted investigation of your actions and, potentially, a substantial personal fine. The integrity of the University as a trusted provider of education services could also be jeopardised as a result of external scrutiny by the ACCC and the Tertiary Education Quality and Standards Agency (TEQSA).
Foreign Influence Transparency Scheme (registration of foreign relationships)
The Foreign Influence Transparency Scheme applies to anyone acting on behalf of a foreign government or its agent where that activity is for the primary purpose of influencing political or government outcomes.
Under the scheme, a person who enters into an arrangement with a foreign government, or an agent of that government, for the sole purpose of influencing government activity in Australia is required to register the relationship and the nature of the activity with the Commonwealth Government.
The Foreign Influence Transparency Scheme commenced on Monday, 10 December 2018.
Most academic activity is not conducted on behalf of a foreign government for the sole purpose of influencing Australian governments. Definitions adopted in the legislation were expressly drafted to ensure most academic work is excluded.
However, academics in faculties such as Arts and Professions where academic commentary on politics and government is more likely should carefully assess whether their collaborative or consultancy work could be characterised as primarily intended to influence Australian governments. Seek further advice from the Legal and Risk Branch if you think the following circumstances may apply to any academic activity you are aware of:
- An academic involved is based in an overseas university or other research institution which is publicly funded and which is subject to a high degree of direct government control over its function and operations.
- The publisher of your academic work is based in a university which is both publicly funded and subject to a high degree of direct government control.
- You are engaged by an overseas agent with connections to a foreign government about a consultancy seeking your expert strategic advice on future Australian policy directions in an area you are frequently asked to make public comment and formal submissions about.
In these circumstances, it may be prudent to register rather than deal with the potential consequences.
Penalties of up to 5 years imprisonment may apply to individuals who fail to register under the provisions of the Foreign Influence Transparency Scheme Act 2018 (Cth) or to individuals who ignore the obligation of others when the nature of the activities are known to them. For example, academic supervisors of research students or business partnership specialists.
The university has prepared a checklist to help you assess whether a particular activity should be registered under the Scheme. A range of fact sheets are also available on the Attorney-General's Department website that, together, provide a comprehensive overview of the requirements.
The following Rules are made under the Act and give detail about the operation of the Scheme:
Global engagement and collaboration can generate many benefits when it is done for a transparent purpose. When it is courted by a foreign government with the intention of subverting Australian national interests, it presents a risk to the institutions of Australian democracy. Protect your academic reputation and freedom by considering whether your international relationships could pose such a risk and should be declared.
Espionage and foreign interference
Following the introduction of the Foreign Influence Transparency Scheme, the definitions that apply to offences against the state were modernised.
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, expanded the types of behaviour that constitute espionage and increased the Commonwealth’s legal capacity to prosecute covert and deceptive conduct on behalf of a foreign principal: that is, a foreign government, political organization, or public enterprise, as well as individuals and entities connected to them.
A new offence for the theft of trade secrets involving a foreign government has been included along with updated definitions of treason, espionage, sabotage and treachery, in the Criminal Code Act 1995. Penalties for these offences range from sentences of 10 years to life imprisonment.
In setting out the elements of these offences, the concept of recklessness can also apply. If it is evident that an individual was aware of a substantial risk to national security but nonetheless failed to act to control that risk, that person may face up to 20 years imprisonment.
As the University’s international reach and engagement with foreign nationals expands, the potential risks as well as the opportunities this brings must be recognised. The University’s routine development of intellectual property and engagement with strategic and defence research partners present potential incentives for foreign nationals with ulterior motives.
By being aware and ensuring that sensitive information or knowledge is secured, you can reduce the risk that this information might be used against Australia’s interests and protect yourself against the substantial consequences.
Facilitation payments are unofficial payments offered to public officials to secure an administrative outcome or speed up a routine government activity. In some countries, such payments are asserted as customary or as normal business practice. A modest payment by Australian standards may be considered very differently by your host nation, however. The reality is that such payments cannot be justified and are illegal. They are bribes.
This is not a routine cost of doing business and most OECD countries have banned such payments. Many jurisdictions, including Australia, have introduced laws to make it clear that such payments constitute bribery and are a crime.
Regardless of where this activity occurs, an Australian may be prosecuted under section 70.2 of the Criminal Code Act 1995 (Cth) if they 'provide or offer to someone (directly or indirectly) a benefit that is not legitimately due to that person, with the intention of influencing a foreign public official in the exercise of their duties, in order to obtain or retain a business advantage. Prosecutors do not have to prove intent to bribe or that a successful business outcome ensued.
Division 490 of the Criminal Code also makes it an offence to intentionally or recklessly falsify accounting documents to conceal bribery. This means that any person or organisation concealing bribes or facilitation payments by falsifying financial records, on purpose or through indifference to irregularities in organisational accounting practices, could be prosecuted.
Any activity that could be construed as bribery under these provisions would be subject to penalties, including significant fines and up to 10 years in prison.
Facilitation payments damage communities and economies by distorting government procedures and undermining transparency in business practices to the advantage of a few corrupt individuals. Facilitation payments should never be made. Irregularities in financial accounts should not be ignored. Report any requests for facilitation payments or evidence of falsified accounts to your Head of School or Branch.
Employees of Australian universities are subject to the Australian law regardless of the jurisdiction in which a facilitation payment is made. If you give a bribe to a public official or if you ignore irregularities in financial accounting records intended to conceal a bribe you risk investigation by the Australian Federal Police and criminal charges that can lead to imprisonment.
Defence Trade Controls (research)
Researchers in universities must exercise caution where their experimental discoveries or the improved application of technology fit within categories on the Defence and Strategic Goods List.
Some goods and technologies are controlled and cannot be exported or transferred overseas without a permit issued by the Commonwealth Government. This includes the trade in traditional military goods, such as weaponry, but also componentry or technologies that have a dual use, such as sensing or measurement technologies.
This regulatory regime enforces international multilateral agreements about the safe trade in goods and technologies that have strategic or military use. Under these agreements, Australia adopts protocols to ensure transparency in the international transfer of listed goods and technologies with the aim of reducing the risk that they will be used by the wrong people for the wrong reason. These agreements are given force in Australia under the Customs Act 1901 (Cth) and the Defence Trade Controls Act 2012 (Cth).
The export from Australia of listed goods and technologies is strictly controlled and a permit required. Because of the global risk, the concept of export is broadly defined and can include the transmission overseas of controlled information such as design plans or software. Even emailing or carrying documents overseas containing restricted technical data without a permit can breach these laws.
It is important that you protect yourself against any breach of the Defence Trade Controls Act. Penalties of up to 10 years in prison and/or up to $525k apply to individuals.
The best strategy is to apply for a permit and be told by the Defence Export Controls Office that you don’t need one.
Contact the Office of Research Ethics Compliance and Integrity for advice and assistance with this process.
The University supports academic researchers to meet their obligations under the Act, but it is ultimately the responsibility and liability of each academic to understand the potential strategic defence risks that may attach to their research and to seek assistance in managing this risk by arranging for a permit to be issued.
Sanctions laws can impact on a broad range of university activities, including student enrolments, higher degree research projects, academic or commercial collaborations and staff recruitment. General awareness of the scope and purpose of sanctions is important where activity may have an international connection.
Sanctions are used by governments as a form of economic or diplomatic restriction to signal and potentially curb objectionable actions of other nation states, entities or people. They are a key pillar in Australia’s diplomatic efforts to promote transparent government, the recognition of human rights across the globe and to prevent co-ordinated terrorism.
Sanctions impose restrictions on certain activities such as trade in goods and services (including research, education, training or intellectual property), financial transactions or travel. The scope of the restriction will vary depending on the nature of the behaviour being sanctioned. This means that it can be difficult to identify the “who, what and how” as it applies in any given context.
To assist, the Department of Foreign Affairs and Trade (DFAT) provides a searchable database called the Consolidated List which contains all persons and entities who are subject to targeted financial sanctions or travel bans under sanctions laws. DFAT also publishes details of the current Sanctions Regimes (listing countries, entities and the sanctions applied).
Contact the relevant administrative area, or Legal and Risk Branch, for more information if you are concerned that a sanction may apply to a person, activity or project.
An individual who breaches a sanction can face up to 10 years in prison and/or a fine the greater of $500k or three times the value of the transaction involved. The University could also be subject to a fine of $2M+ even where the failure to consider the impact of a sanction on their activity was solely that of an individual member of staff.
Sanctions can affect a broad range of University activities and the level of vigilance applied to manage this risk should reflect the level of international engagement activity. In particular, where the engagement is new or changing, you should refer to the DFAT website for details about the governing regimes and geopolitical features. Check whether any of the entities and individuals involved are on the Consolidated List.
The University and its officers have public accountability obligations set out in its founding Act and other State and Commonwealth legislation. This includes accountability to bodies such as the Independent Commissioner Against Corruption, Ombudsman, Auditor General, Australian Charities and Not-for-profits Commission and funding bodies.
Have you seen something in the University that you think is wrong? Depending on the circumstances, there are certain people you can, and should, talk to.