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 (refer Foreign compliance obligations).
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.
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 Arrangements Scheme
The University must comply with statutory obligations to notify the Minister for Foreign Affairs of any written arrangements made with foreign governments or foreign entities.
The Foreign Arrangements Scheme (FAS) is established by the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) and applies to Australian State and Territory entities, including all public universities. The Scheme applies to existing and proposed arrangements that meet the criteria set by the Act.
When the University enters into an arrangement with a foreign entity, including a foreign university, it must determine whether the obligation to notify applies.
The following resources are provided to assist University personnel in understanding their legal obligations and making an appropriate assessment:
- Foreign Arrangement Scheme FAQs
- Foreign Arrangements Scheme legislative summary diagram - provides an overview of the operation of the Scheme
- Foreign Arrangements Scheme due diligence explainer - includes legislative criteria for Foreign Entities
An arrangement with a relevant foreign entity must be managed according to the Act:
- A 14-day notification deadline applies once the University has determined to proceed with a foreign arrangement.
- A notification must be lodged by the University via the online portal - the name of the arrangement and the parties involved will be published on the FAS register - contact Global Engagement for further details about this process.
Foreign Influence Transparency Scheme
Australian citizens and permanent residents who arrange with a foreign principal to act on their behalf for the purpose of influencing political or government outcomes must register under the Foreign Influence Transparency Scheme (FITS).
The compliance obligation arises when an activity or arrangement involves a process that will, directly or implicitly, exert some form of influence over a government decision making process (broadly defined). Potentially, a registrable activity or arrangement could include routine activities such as making applications or submissions to government decision-makers which have mutual benefit.
Anyone who agrees to act for a foreign principal must consider whether they have a statutory obligation to register that relationship under with the Commonwealth Attorney-General’s Department, and complete a formal assessment of the activity. Details of the registered relationship and activity are published on the FITS Public Register.
The purpose of the scheme is to provide the public with visibility of the nature, level and extent of foreign influence on Australia's government and politics.
Penalties of up to 5 years’ imprisonment may apply to individuals who ignore their obligations and fail to meet the registration requirements set by the Scheme. Individuals who disregard the obligations of others when the nature of the activities are known to them, may also face penalties. Academic supervisors of research students and business partnership specialists should be aware to FITS compliance obligations.
The following resources are available to assist University personnel in understanding their legal obligations and making an appropriate assessment:
- Foreign Influence Transparency Scheme FAQs and detailed guidelines
- Foreign Influence Checklist
- Fact sheets (Attorney-General’s Department)
The scheme is established by the Foreign Influence Transparency Scheme Act 2018 (Cth). Rules made under the Act give detail about the operation of the Scheme:
Foreign interference occurs when activities are carried out by, or on behalf of a foreign actor, which are coercive, covert, deceptive or corrupting and are contrary to Australia’s sovereignty, values and national interests.Guidelines to Counter Foreign Interference in the Australian University Sector, p.6
Activities which threaten Australia’s national interest can be unexpected: like unauthorised foreign access to University IT systems (cyber-hacking) or to original research findings (theft of intellectual property).
The potential for such threats should be actively anticipated, however, and preventative measures put in place.
Australian universities are expected to ensure that the broad benefits to Australia derived from international collaborations and recruitment are balanced against the potential for foreign interference to be facilitated through these relationships.
Guidelines to Counter Foreign Interference in the Australian University Sector were mutually adopted in November 2019. The premise of the Guidelines is that everyone involved with universities has a role to play in protecting Australia’s national interest and those with international connections should apply particular vigilance, including:
- Due diligence
- check out your international partner before you commit
- assess any potential risks to your intellectual property
- ensure that collaborative agreements are reviewed and give robust protection to your, the University’s and Australia’s interests
- Education and awareness strategies
- cultivate a security culture with your colleagues
- seek advice and training that is appropriate for your level of exposure to foreign nationals or entities
- Cyber security
- be aware and apply the protective strategies recommended
- seek advice from others, including IT support, and share concerns about vulnerabilities
Acts of foreign interference (espionage, theft of trade secrets or sabotage) are offences under the Criminal Code Act 1995, with penalties ranging from 10 years to life imprisonment Failure to prevent foreign interference is also an offence. Anyone aware of a substantial risk to national security but nonetheless fails to act to control that risk, could face up to 20 years’ imprisonment.
Being aware of foreign interference risks, properly managing those risks, and applying appropriate security to sensitive information and knowledge, protects you, the University and Australia against the substantial consequences that could follow.
Contact the Legal and Risk Branch for advice and assistance with this process.
- Due diligence
Facilitation Payments and Bribery
Facilitation payments are unofficial payments offered to public officials to secure an administrative outcome or speed up a routine government activity. Regardless of jurisdiction, they are not “normal business practice”. Facilitation payments distort government procedures and undermine transparency in business practices for the advantage of a few corrupt individuals.
The reality is that such payments are bribes and are illegal in most OECD countries including Australia. 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.
It is also an offence to conceal bribery by intentionally or recklessly falsify accounting documents. Significant fines or imprisonment up to 10 years may apply under Division 490 of the Criminal Code. Irregularities in financial accounts should not be ignored.
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. Report any requests for facilitation payments or evidence of falsified accounts to your Head of School or Branch.
Defence Trade Controls
Some goods and technologies are controlled and cannot be exported or transferred overseas without a permit issued by the Australian 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. Researchers should check to see if any of technologies they are working on are included on the Defence and Strategic Goods List.
International multilateral agreements have been established to ensure the safe international trade in goods and technologies that have actual or potential strategic or military use. 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. Australia’s international obligations under these agreements are given force in Australia by 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 must be obtained. Penalties of up to 10 years in prison and/or up to $525k apply to individuals who ignore their obligations. It is better apply for a permit and be told by the Defence Export Controls Office that you don’t need one.
The University has process to 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.
Contact the Office of Research Ethics Compliance and Integrity for advice and assistance with this process.
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. International sanctions are applied by governments as an economic or diplomatic objection to the actions of other nation states, entities or people.
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 severity of the behaviour and the necessity for censure.
The Department of Foreign Affairs and Trade (DFAT) provides a searchable database called the Consolidated List which contains details 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 that have been applied).
Sanctions can affect a broad range of University activities and a high level of vigilance should be applied where there is risk or uncertainty. An individual who breaches a sanction can face up to 10 years in prison and/or a fine set at 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.
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.
If you are a University employee, an officer of the University, a titleholder, a volunteer, a consultant or a contractor who provides services to the University, you are a Public Officer under the Independent Commissioner Against Corruption Act 2012 (SA) and are required by law to report certain types of conduct to the Office for Public Integrity.
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.