This policy sets out ACU's approach to managing and documenting declarations with respect to material personal interests and related party transactions involving Senators.
Table of Contents
- Background Information
- Policy Statement
- Policy Purpose
- Application of Policy
- Conflicts of Interest and Related Party Transactions
- Roles and Responsibilities
- Compliance with this Policy
- Policy Review
- Further Assistance
- Glossary of Terms
1. Background Information
Australian Catholic University Limited (ACU) is a public company limited by guarantee regulated by the Corporations Act 2001 (Cth) (Corporations Act) and the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act). ACU has particular legal obligations with regards to managing conflicts of interests and related party transactions. Senators have a duty to comply with the legislative requirements concerning the disclosure and appropriate management of transactions which involve their interests.
2. Policy Statement
The management of Senators’ material personal interests is central to maintaining organisational integrity. ACU is committed to ensuring that Senators perform their duties to disclose this information, both in their capacity as Directors in compliance with the Corporations Act, and in their capacity as Responsible Persons of a Charity in compliance with ACNC Governance Standard 5.
3. Policy Purpose
The Senator Declaration of Interest Policy (Policy) has been developed because, where conflicts of interest arise, they need not present a problem to ACU if they are openly and effectively managed. The purpose of this Policy is to:
- assist Senators to recognise conflicts of interest if and when they arise;
- establish a mechanism so that Senators can identify and disclose personal or material interests to the Senate;
- develop sound practices for ACU to appropriately manage and monitor conflicts of interests and related party transactions; and
- ensure that ACU meets its legal and regulatory obligations.
4. Application of Policy
This Policy applies to all Senators of ACU.
5. Conflicts of Interest and Related Party Transactions
5.1 Identifying conflicts of interest
A conflict of interest occurs when a Senator’s personal interests conflict with their duty to act in the best interests of ACU.
A conflict of interest may also arise where there are competing interests as a result of a Senator’s duty to ACU and another duty that the Senator has (for example, to another company or charity). A conflict of interest may be actual, potential or perceived and may be financial or non-financial.
Corporate governance is concerned with material conflicts of interest. Determining when a personal interest is, or becomes, a material personal interest will depend on the circumstances of each case.
Generally, where a personal interest has the potential to affect the Senator’s consideration of a particular matter and/or the capacity to influence a Senator's vote on a particular matter this would be considered material.
Examples of material personal interests that a Senator might have include:
- directorships of entities that may have dealings with ACU
- directorships and memberships that could detract unreasonably from the time a Senator is available to allocate to ACU’s affairs
- outside employment or engagements
- property, investment or interest in a business that might have some interaction with ACU
5.2 Conflicts of interest and related parties
Personal interests include direct interests, but also extend to third parties that a person may be involved with or have an interest in.
There is a risk that the interests of a related party (Senators and/or their spouses, parents or children) may influence decision-making to the detriment of the interests of ACU when ACU is considering whether to enter into a transaction with a related party.
A related party transaction is any transaction through which ACU provides a financial benefit to a related party. This policy does not apply to related party transactions not involving Senators which are otherwise reported in ACU’s financial statements.
The definition of financial benefit is broad. A financial benefit includes giving a financial benefit indirectly through an interposed entity, making an informal, oral or non binding agreement to give the benefit, and giving a benefit that does not involve paying money.
Circumstances in which the provision of a financial benefit may occur include:
- Giving or providing finance or property to the related party;
- Buying an asset from, or selling an asset to, the related party;
- Leasing an asset to or from the related party;
- Supplying services to, or receiving services from, the related party;
- Issuing securities or grating an option to the related party; and
- Taking up or releasing an obligation of the related party.
Under the Corporations Act, public companies such as ACU must obtain approval by the Members of Corporation to provide financial benefits to related parties, subject to certain exceptions. Moreover, the Constitution of ACU specifically requires leave of Members in order for an individual in the Office of Senator, Chancellor or Pro-Chancellor to receive any profit from the Corporation1.
1 Refer clauses 13.10 and 20.4 respectively.
5.3 Disclosure of Interests
Senators must take all reasonable steps to avoid any conflict (actual, potential or perceived) arising out of their personal interests, or the interests of any other related party, and their duties to ACU.
Where a Senator is uncertain as to whether an interest should be disclosed in accordance with this Policy, the Senator must either consult with the Secretary of Corporation for advice, or disclose the interest for the avoidance of doubt.
ACU shall maintain a Senator Register of Interests and Related Party Transactions (Register) recording details of the disclosure in the form of Schedule A. The Register will be tabled at each meeting of Senate.
On appointment, each new Senator will be expected to make a full disclosure, by way of a Standing Notice, of material and personal interests. Standing Notice may be given before the interest becomes a material personal interest. The interest may be longstanding, such as in the case of multiple directorships.
Thereafter, where a Senator becomes aware of an actual, potential or perceived conflict of interest, they are required to declare this as and when it becomes apparent. This may be prior to a meeting of Senate or during proceedings. The disclosure may be oral or in writing and will be recorded in the minutes and subsequently entered into the Register.
5.4 Managing Conflicts of Interests
The Senate must decide on the course of action2 for managing Senator conflicts of interest, with appropriate consideration of the nature and extent of the conflict of interest. Such actions may include:
- taking appropriate measures so that the Senator may participate in both the debate and voting;
- Senator to refrain from voting;
- Senator to refrain from participating in the debate;
- Senator to withdraw from the Boardroom during the debate and the voting, or
- suggest that the Senator consider resigning from the Senate.
The materiality of an interest will depend on the circumstances of each case and will be a matter of judgment.
2 Refer to s195 of the Corporations Act with regards to restrictions on voting imposed on directors of public companies and exceptions.
5.5 Managing Related Party Transactions
The process requiring Senators to declare any personal interest assists the Senate to determine if any transaction being entered into is a related party transaction.
If ACU Limited intends to enter into a transaction, due regard must be had for the Register.
In the event that a transaction has the potential to constitute a related party transaction, the Secretary may seek advice from one or more of the following before referring the matter to Senate:
- Vice-Chancellor and President
- General Counsel
- Director of Finance
Senators will be prohibited from participating in voting associated with related party transactions where they are the related party.
Where Senate resolves to proceed with the transaction, the minutes will record whether the transaction requires member approval or if the giving of the financial benefit falls within one of the exceptions under the Corporations Act.
5.6 Monitoring Conflicts of Interest and Related Party Transactions
The Register shall be updated regularly by the Directorate of Governance and reviewed by the Senators at each meeting of Senate. If there is a change to any interest or related party transaction, such change must be either declared by the Senator during the meeting, or submitted in writing to the Secretary of Corporation, who will subsequently advise Senate appropriately and liaise with the Directorate of Governance to update the Register.
6. Roles and Responsibilities
6.1 Approval Authority
Senate is the Approval Authority for this Policy.
6.2 Governing Authority
Standing and Finance is the Governing Authority for this Policy.
6.3 Responsible Officer
The Director, Governance is the Responsible Officer for this Policy.
Senate is responsible for determining the appropriate course of action for managing Senator conflicts of interest and related party transactions.
Senators have statutory and regulatory obligations to:
- disclose actual, potential and perceived conflicts of interest to the Senate;
- cooperate in response to a decision made by Senate in order to manage any conflicts of interest; and
- comply with requirements in any related party transaction.
6.6 Secretary of Corporation
The Secretary of Corporation shall communicate with Senators and facilitate compliance with regards to the disclosure and appropriate management of transactions which involve Senators’ personal interests.
6.7 Directorate of Governance
The Directorate of Governance shall maintain the Register to be tabled at each meeting of Senate on behalf of the Secretary of Corporation.
6.8 Members of Corporation
Approval must be sought from the Members of Corporation in order for ACU to provide financial benefits to related parties, subject to certain exceptions3.
3 Part 2E.1 of the Corporations Act sets out requirements, exceptions and procedure to be followed in obtaining Member approval in a related party transaction.
7. Compliance with this Policy
If a person suspects that a Senator has failed to disclose a conflict of interest, they must inform the Secretary of Corporation, who will make enquiries and take action, where appropriate, to subsequently notify Senate and liaise with the Directorate of Governance to update the Register.
A failure to comply with this Policy may result in an investigation into the circumstances of the matter and may result in further action as determined by the Senate.
8. Policy Review
In line with the University’s Policy Development Policy, this Policy is scheduled for review every five years or more frequently if appropriate.
8.1 Revisions made to this Policy
Major or Minor Revision
Description of Revision(s)
9. Further Assistance
A Senator who requires assistance in understanding this policy should contact the Responsible Officer for clarification.
10. Glossary of Terms
For the purpose of this Policy:
ACNC means Australian Charities and Not-for-profits Commission
ACNC Act means Australian Charities and Not-for-profits Commission Act 2012 (Cth)
ACNC Governance Standard 5 means Australian Charities and Not-for-profits Commission Governance Standard 5, under which Senators have a duty as responsible persons of a charity, to disclose conflicts of interest
ACNC Regulation means Australian Charities and Not-for-profits Commission Regulation 2013
ASIC means the Australian Securities and Investments Commission
Conflict of Interest means an actual, potential, or perceived conflict between a Senator’s duty to ACU and another duty that the Senator has, as referred to in the Corporations Act and ACNC Governance Standard 5
Corporations Act means the Corporations Act 2001 (Cth)
Material Personal Interest means a personal interest of a Senator that may materially affect decisions they make on ACU’s behalf, as referred to in the Corporations Act and ACNC Governance Standard 5
Member means a Member of Australian Catholic University Limited, as referred to in ACU’s Constitution, the Corporations Act and ACNC Regulation
Policy means Senator Conflict of Interest Policy
Related Party means a Senator and/or their spouses, parents or children, as referred to in the Corporations Act, ASIC Regulatory Guide 76 and Australian Accounting Standard 124
Related Party Transaction means any transaction through which a public company (such as ACU) provides a financial benefit to a related party
Secretary of Corporation means the Company Secretary appointed by ACU’s Board of Directors (Senate), recognised as a company officer under the Corporations Act
Senator means a member of Senate of Australian Catholic University Limited, as recognised in ACU’s Constitution, a director of the Board under the Corporations Act, and a Responsible Person of a Charity under the ACNC Act
Standing Notice means notice of a material personal interest, as referred to in the Corporations Act
Schedule A - Senator Register of Interests and Related Party Transactions
|Name of Senator||Description of Interest||Nature of Notice||Management of Conflict||Related Party Transaction||Member Approval||Resolution Number|
|Senator X||Membership of [X] Association|
Standing Notice provided on appointment [DATE]
|Senator Y||Responsible Person of [X] Charity|
Declared verbally at meeting on [DATE] – refer minutes
Senator Y refrained from voting on Agenda Item [X] of meeting [DATE]
ACU previously utilised facilities at [X] Charity of which Senator Y is a Responsible Person
S 2017/ xxx
|Senator Z||Director of [Y] Financial Services|
Declared in writing to Secretary of Corporation on [DATE] and tabled at meeting on [DATE] – refer meeting materials
- Senator Declaration of Interest Policy and Register - November 2017.pdf (Policy, PDF File, 118.8 KB)
- Senator Disclosure Form (Policy, PDF File, 1.2 MB)
|Policy applies to||
|Policy Status||New Policy|
|Governing Authority||Standing and Finance Committee|
|Responsible Officer||Director, Governance|
|Date of Last Revision||Not Applicable|
|Date of Policy Review *||30/11/2022|
* Unless otherwise indicated, this policy will still apply beyond the review date.
Related Policies, Procedures, Guidelines and Local Protocols
Corporations Act 2001 (Cth)
ASIC Regulatory Guide 76: Related Party Transactions
Australian Charities and Not-for-profits Commission Act 2012 (Cth)
Australian Charities and Not-for-profits Commission Regulation 2013
Australian Charities and Not-for-profits Commission Governance Standards
Australian Accounting Standard 124
Page last updated: 2017-12-15
Short url: https://policies.acu.edu.au/1369073