UNIVERSITY COUNCIL CODE OF CONDUCT EDITH COWAN UNIVERSITY 28 June 2007 EDITH COWAN UNIVERSITY UNIVERSITY COUNCIL CODE OF CONDUCT Duties and Responsibilities Relating to Council Membership 1. PURPOSE This Code of Conduct has been prepared to assist individual Council members to discharge their duties and responsibilities in a manner which will contribute to the greater good of ECU. It should be read in conjunction with the Corporate Governance Statement approved by the Council and Council Standing Orders. It is intended that the Code will: (i) ensure that members of Council are aware of the legal duties, liabilities and protections arising from their membership of the Council; (ii) promote good practice among Council members by describing the general responsibilities they have to the University, the Council and fellow members and to the staff and students of ECU; and (iii) describe the University’s obligations to Council members, which will assist them to carry out their duties and responsibilities to the best of their abilities. 2. LEGAL DUTIES, POTENTIAL LIABILITIES AND PROTECTIONS 2.1 Sources The sources of Council members’ legal duties, potential liabilities and protections are: * Edith Cowan University Act 1984, particularly Schedule 1 of that Act (Appendix A); * Statutory Corporations (Liabilities of Directors) Act 1996; * other relevant Statutes; * the general law, given the fiduciary nature of the relationship between Council members and the University, including duties to act in good faith and with reasonable care, skill and diligence; and * decisions of the University Council. 2.2 Duties Consistent with the relevant provisions of the sources identified in section 2.1, members of the Council: 2.2.1 Must at all times act honestly in the performance of the functions of a member of the Council, whether within or outside the State [clause 1(1)(a) of Schedule 1 of the ECU Act]. This requires individual members of Council to - * carry out their duties as a Council member in good faith, honestly and for proper purposes consistent with the interests of the University; * avoid conflicts between their personal interests and those of the University; and * exercise independent judgment in relation to matters coming before the Council. 2.2.2 Must at all times exercise the degree of care and diligence in the performance of the functions of a member, whether within or outside the State, that a reasonable person in that position would reasonably be expected to exercise in the Council’s circumstances [clause 1(1)(b) of Schedule 1 of the ECU Act]. This requires individual members of Council to - * exercise due diligence and care in carrying out their functions; * exercise any special skills or experience that a member might possess in arriving at decisions on matters coming before the Council; * have informed themselves to the extent reasonably necessary to make such decisions; * rationally believe the decisions they make to be in the best interests of the University; and * respect the often confidential nature of material coming before Council and abide by any restrictions on the disclosure of information agreed by the Council. 2.2.3 Must at all times act in the best interests of the University and give precedence to the interests of the University over the interests of any person appointing or electing a member [clause 1(1)(c) of Schedule 1 of the ECU Act]. This requires individual members of Council to - * when voting on a matter before Council, give precedence to the interests of the University as a whole over the interests of any representative affiliation or association; and * place the University’s interests above their personal employment or other interests and not use their position for private gain or advantage. 2.2.4 Must not, whether within or outside the State, make improper use of the information acquired by virtue of the position of member to gain, directly or indirectly, an advantage for any person or to cause detriment to the University [clause 1(1)(d) of Schedule 1 of the ECU Act]. This requires individual members of Council to - * ensure that any information received in that capacity (not only information that the general law would project as confidential) is not disclosed if that would allow any person to gain a direct or indirect advantage or cause detriment to the University. 2.2.5 Must not, whether within or outside the State, make improper use of the position of member to gain, directly or indirectly, an advantage for any person or to cause detriment to the University [clause 1(1)(e) of Schedule 1 of the ECU Act]. This requires individual members of Council to - * not seek or accept in connection with their capacity as a member any improper fee, favour, reward, gratuity or remuneration of any kind; * not use their position as a member for personal profit, gain or advantage or use that position improperly to enable themselves or another person to achieve any profit, gain or advantage; * not accept any gift if it could be seen by any other party, in possession of all of the facts of that case, as intended or likely to cause the member to act in a particular way or to deviate from their duties; and * not misuse any property or facilities of the University provided to enable them to carry out their duties. 2.2.6 Must, if a member has a material personal interest in a matter being considered or about to be considered by the Council, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature and extent of the interest at a meeting of the Council [clause 2(1) of Schedule 1 of the ECU Act]. This requires individual members of Council to - * disclose the nature and extent of any material personal interest at a meeting of the Council; and * absent themselves from a meeting while the matter is being considered and not vote on the matter, whether at a meeting or otherwise, except if permitted to consider or vote on the matter under the provisions of either clause 3 or clause 6 of Schedule 1 of the Edith Cowan University Act. (Note: a material personal interest arises where there is a realistic expectation that, directly or indirectly, a member of Council or an associated/related person stands to gain a benefit or suffer a loss depending on the outcome of the matter. The benefit or loss need not be financial. A matter that arises from membership of a group qualifying that person for election or appointment to membership of the Council, which is not otherwise special or personal to that member, is not a material personal interest. Examples could include student members voting on assessment policy or staff members voting on a general industrial matter.) 2.3 Potential Liabilities 2.3.1 The Council may be held accountable for perceived or actual mismanagement in a number of instances, such as - * any decision it made which was contrary to the law or clearly negligent; * decisions which Council has no authority to make, particularly if it could be shown that such decisions were taken with the intent of causing harm; * mismanagement, where this could be shown to be the outcome of failure to ensure the existence of adequate University procedures or policies; or * financial mismanagement, if this could be shown to be the result of negligence in monitoring financial reports and compliance with audit requirements. 2.3.2 Because individual members of Council contribute to the operations of the Council, to the extent that they breach their legal duties they may be exposed to legal action. 2.3.3 Various external parties, including the State Governor, the WA Minister for Education and/or the WA Attorney-General, may take legal or other actions for breaches of the duties of members of Council, as can a third party who sustains a loss as a result of a breach of duties. 2.3.4 The University, members of Council and University managers may also be liable, collectively and/or individually, for offences committed under a range of legislation including, but not limited to, legislation relating to animal welfare, equal opportunity, fair trading and trade practices. 2.3.5 The University has the capacity to enforce the general law duties of acting in good faith and honestly arising from the fiduciary relationship between individual members of Council and the University. 2.3.6 Provisions of the Edith Cowan University Act also include powers for the Council to suspend or remove from office a member who breaches their duties. 2.4 Protection from Liability 2.4.1 Section 17A of the Edith Cowan University Act provides that a court may relieve a member of Council or former member of Council either wholly or partially of liability for negligence, default, breach of trust or breach of duty in a civil action arising from that person’s capacity as a Council member if he or she - * has acted honestly; and * ought fairly to be excused having regard to all of the circumstances of the case. 2.4.2 The potential relief provided by section 17A of the Edith Cowan University Act is in addition to other forms of defence or protection available under any other laws or otherwise including: * directors’ and officers’ liability insurance covering non-criminal negligence and other liabilities included in the policy held by the University; and * any indemnities provided by resolution of the Council to cover matters not included by directors’ and officers’ liability insurance. 3. GENERAL RESPONSIBILITIES OF COUNCIL MEMBERS In carrying out the duties referred to in section 2.2, members should - * attend, unless unavoidably absent, and be prepared to contribute constructively to all Council meetings and meetings of committees on which they serve; * contribute to the approval processes for setting the University’s mission and strategic direction and the annual budget; * draw relevant matters to the attention of the Chancellor for the information of or possible action by the Council or the Vice-Chancellor; * inform the Chancellor if at any time they consider that the information provided is insufficient to permit the Council to discharge its responsibilities; * inform the Chancellor of any concerns that they might hold about any Council decisions or actions that appear contrary to its public duties, and to do so as soon as these concerns arise; * inform the Chancellor of the possible material interests of other members of the Council in matters before or about to come before the Council, if those interests are not declared by the member or members concerned; * accept collective responsibility for decisions of the Council and support University management in the implementation of these decisions; * inform themselves about their duties and obligations as members of Council; * comply with any University Statutes, Rules, by-laws and policies and procedures applicable to them in their capacity as members of Council; * make reasonable efforts to become familiar with the governance and affairs of the University, and its public duties and functions; * keep themselves informed about matters affecting the higher education sector, particularly those impacting directly or potentially on ECU; * take advantage of opportunities provided for induction and professional development in their role as Council members; * recognise that only the Chancellor or his or her nominee may speak publicly on behalf of the Council; * represent the University and the Council in external and internal forums, including attending graduation ceremonies and other ceremonial functions whenever possible; and * as required by the WA Corruption and Crime Commission Act 2003, report to the Commission, preferably through the Chancellor or Vice- Chancellor, any information about actual or potentially corrupt or illegal activities involving members of Council or staff of the University. 4. THE UNIVERSITY’S OBLIGATIONS TO COUNCIL MEMBERS The University will: * provide Council members with such comprehensive, accurate and timely information as is required for members to act with the degree of care, skill and diligence required of them by the Edith Cowan University Act, other relevant Statutes and the general law; * provide such legal and financial advice as may be necessary to enable Council members to discharge their duties; * provide, subject to any contrary legal restrictions, Council members with access to any University documentation required to enable them to perform their duties; * make available a program of induction and professional development for Council members to build the expertise of Council and to ensure that all members are aware of the nature of their duties and responsibilities * provide such other administrative assistance as may be required from time to time, including but not limited to reimbursement of expenses incurred on authorised Council business and the provision of vehicle parking; * ensure to the best of its ability that all statutory responsibilities imposed on the Council and its members by the Edith Cowan University Act, internal University legislation, external legislation applicable to the University and processes approved by the Council are met; and * to the extent permissible by law, maintain adequate levels of insurance cover and other forms of indemnity necessary to indemnify and keep indemnified each Council member in respect of liability arising out of his or her discharge of duties and responsibilities. 5. COUNCIL MEMBERS TO AGREE TO BE BOUND BY TERMS OF CODE On commencement as a member of Council, each member will be required to acknowledge in writing that they agree to abide by the duties and obligations of members of Council as set out in this Code. APPENDIX A Edith Cowan University Act 1984 Schedule 1 Council members Division 1 Duties 1. Duties (1) Each member - (a) must at all times act honestly in the performance of the functions of a member, whether within or outside the State; (b) must at all times exercise the degree of care and diligence in the performance of the functions of a member, whether within or outside the State, that a reasonable person in that position would reasonably be expected to exercise in the Council's circumstances; (c) must at all times act in the best interests of the University and give precedence to the interests of the University over the interests of any person appointing or electing a member; (d) must not, whether within or outside the State, make improper use of information acquired by virtue of the position of member to gain, directly or indirectly, an advantage for any person or to cause detriment to the University; (e) must not, whether within or outside the State, make improper use of the position of member to gain, directly or indirectly, an advantage for any person or to cause detriment to the University. (2) Nothing in subclause (1) or section 11A or 13 affects - (a) any other duty a member may have under any other law; or (b) the operation of any other law in relation to such a duty. Division 2 Disclosure of interests 2. Disclosure of interests (1) A member who has a material personal interest in a matter being considered or about to be considered by the Council must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature and extent of the interest at a meeting of the Council. (2) A disclosure under subclause (1) is to be recorded in the minutes of the meeting. 3. Voting by interested members A member who has a material personal interest in a matter that is being considered by the Council ? (a) must not vote whether at a meeting or otherwise - (i) on the matter; or (ii) on a proposed resolution under clause 4 in respect of the matter, whether relating to that member or a different member; and (b) must not be present while - (i) the matter; or (ii) a proposed resolution of the kind referred to in paragraph (a)(ii), is being considered at a meeting. 4. Clause 3 may be declared inapplicable Clause 3 does not apply if the Council has at any time passed a resolution that - (a) specifies the member, the interest and the matter; and (b) states that the members voting for the resolution are satisfied that the interest should not disqualify the member from considering or voting on the matter. 5. Quorum where clause 3 applies Despite section 14(1), if a member is disqualified under clause 3 in relation to a matter, a quorum is present during the consideration of the matter if at least 8 members are present who are entitled to vote on any motion that may be moved at the meeting in relation to the matter. 6. Minister may declare clauses 3 and 5 inapplicable (1) The Minister may, on the application of a member, by writing declare that clause 3 or 5 or both of them do not apply in relation to a specified matter either generally or in voting on particular resolutions. (2) The Minister must cause a copy of a declaration made under subclause (1) to be laid before each House of Parliament within 14 sitting days of that House after the declaration is made. 1 8