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Summary of Amendments to the Commonwealth Authorities and Companies Act

Summary of changes to the CAC Act for Senior Managers

The purpose of this summary is to provide an overview of the main changes made by the Commonwealth Authorities and Companies Amendment Act 2008 to the CAC Act that will affect the University, its employees and University Council Members.

For ease of reference the terms, ‘University’, ‘University Council Members’ and ‘University Officer’ are used when outlining the amendments to the CAC Act. All references to sections are references to the relevant section of the CAC Act.

Changes to the CAC Act

Inclusion of the term ‘Senior Manager’ in the Definition of ‘Officer’

The CAC Act imposes a number of requirements on ‘Officers’ of the University. To clarify what is meant by the term ‘Officer’ of the University and to bring the definition of ‘Officer’ in line with the definition in the Corporations Act, the term ‘Senior Manager’ has been added to the definition of Officer (section 5).

‘Senior Manager’ is defined as a person who:

(i) makes or participates in decisions that affects the whole, or a substantial part, of the University; or

(ii) has the capacity to significantly affect the University’s financial standing.

This definition covers Deans and Directors, as well as Heads of Major Budget Units within the University. It will also cover individuals engaged in managing the finances of the University. As a matter of practice, the Legal Office had been of the view that these staff members were already included in the definition of ‘Officers’ prior to these amendments.

Penalty Provisions

The following new or varied penalties have been added to the CAC Act:

A $220,000 fine and/or 5 years’ imprisonment where a University Council Member dishonestly causes the contravention of the annual reporting rules (section 11). Please note the use of the word ‘dishonest’ requires an element of intent in the University Council Member’s actions.

A $220,000 fine and/or 5 years’ imprisonment if a University Council Member or University Officer dishonestly causes the University’s financial records not to be properly recorded so as to prevent/hamper the University in preparing its financial statements and having those statements audited (section 20).

A $220,000 fine and/or 5 years’ imprisonment where a University Council Member or University Officer has breached their duty to: act in good faith; make proper use of the information given to them as a University Council Member or Officer of the University; or use their position for a proper purpose (section 26).

An $1,100 fine where a University Council Member fails to notify University Council of their material personal interest* in a matter that relates to the affairs of the University. This is a strict liability offence, which means that the University Council Member is liable for a penalty regardless of whether they intended to contravene this section or not (section 27F).

A $550 fine where a University Council Member is present during consideration of, or votes on, a matter in which they have a material personal interest, unless their presence or voting is approved via a resolution of Council (section 27J).

A $550 fine on the University where it seeks to insure its University Council Members or University Officers for wilful breach of duty or any contravention of their duties to: act in good faith; make proper use of their position; and make proper use of the information given to them as a University Council Member or Officer of the University. This is also a strict liability offence (section 27N).

A $220,000 fine and/or 5 years’ imprisonment for a University Council Member who dishonestly causes the financial year of a University subsidiary not to align with the University’s financial year, or dishonestly fails to take all reasonable steps to secure alignment of those financial years, within 12 months of the subsidiary becoming a subsidiary (section 30).

There is also an uncommenced section,¹ which provides for a penalty of imprisonment for 7 years where a person misuses a University credit/purchase card (i.e. uses it for a purpose other than for the University). This offence would be a criminal offence, which means the person must have acted with an intention to misuse the purchase/credit card to be liable for this offence.

*Material Personal Interest

Broadly speaking, a ‘material personal interest’ means any direct or indirect, monetary or non-monetary, advantage or benefit a University Council Member has that poses a real possibility of conflicting with the performance of his/her duties as a University Council Member. An interest will not be ‘material’ if it is remote or contingent.

Whilst there is no definition for ‘material personal interest’ in the CAC Act, there are some exceptions to the meaning of ‘material personal interest’ listed in the Act. For example, a University Council Member is not required to disclose any of the following types of interest:

(a) an interest that arises in relation to the University Council Member’s remuneration as a University Council Member;

(b) an interest that relates to insurance coverage for the University Council Member;

(c) the University Council Member’s interest in any contract that indemnifies the University Council Member in the course of his/her duties or any indemnity payments made under these contracts or by the University;

(d) the University Council Member’s interest in a contract which is made on behalf of, or for the benefit of, a University subsidiary to which the University Council Member is a director (section 27F).

Clarification of the Business Judgment Rule

In order to bring the CAC Act in line with the Corporations Act, the ‘business judgment rule’ has been expanded. The previous position was that a University Council Member only needed to make enquiries regarding the nature of the advice if the circumstances suggested a need for this; the provision now provides that a Council Member will be entitled to rely on the advice of an ANU employee, professional adviser, or expert where the reliance is made in good faith and:

“after making an independent assessment of the information or advice, having regard to the [Council Member’s] knowledge of the authority and the complexity of the structure and the operations of the authority” (section 27D).

Amendment of the Administrative Arrangements for Subsidiary Audit Reports

The Act now requires the University Council Members (rather than the Auditor-General, which was the case previously) to arrange for the supply of the University’s subsidiary’s audited financial statements to be supplied to the Responsible Minister (section 12).

1. This section is scheduled to commence prior to the 26 May 2009.

The Staff

Ken Grime

University Counsel

Rachel Vance

Deputy University Counsel

Senior Solicitor

Senior Solicitor

Solicitor

Solicitor

Solicitor

Office Administrator

Assistant Office Administrator

Summary of Anti-Terrorism Legislation

Summary of Terrorism Offences under the Anti-Terrorism Act (No. 2) 2005 for Individuals involved in ANU Research

The provisions of the Anti-Terrorism Act (No. 2) 2005 (‘the Act’) introduces a number of measures to assist law enforcement agencies in responding to, and preventing, terrorist activities.

These measures may have an impact on your research activities where these activities are likely to generate information that is relevant to a terrorist act or an investigation into an actual or possible terrorist offence.

The provisions of the Act also apply to statements made by individuals, which may need to be considered when preparing publications. Where you are engaging in teaching activities, it may be useful for you to familiarise yourself with these provisions when making statements to students in your course.

To assist you in understanding the provisions of the Act, the Legal Office has prepared the following summary of the main provisions. This summary is not intended to be a substitute for reading the Act and you are encouraged to familiarise yourself with the provisions of the Act, which can be found at: http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/all/search/9249AE71DF443FDFCA2570D80024D5A0

Where you have been approached by the Australian Federal Police under this legislation or otherwise, you are encouraged to immediately contact the Deputy Vice-Chancellor and the Legal Office for assistance.

1. Sedition (Force or Violence)

The Act makes it an offence for a person to makes a statement where they urge:
(a) another person to overthrow the constitution, government or lawful authority of the government by force or violence; and/or
(b) interference in Parliamentary elections by force or violence; and/or
(c) violence within the community by urging a group or groups to use force or violence against another group or other groups, and as a result, threatening the peace and good government of the Commonwealth; and/or
(d) another person to engage in conduct intended to assist an organization or country either at war with the Commonwealth (whether declared or not) or considered to be an enemy at war with the Commonwealth (except where aid is provision of humanitarian aid); and/or
(e) another person to assist those engaged in armed hostilities against the Australian Defence Force (except where aid is provision of humanitarian aid).

The emphasis here is the encouragement of the use of force or violence against the Government.

The maximum penalty for making a seditious statement is 7 years imprisonment.

There is a good faith defence for sedition. The defence is available where the person comments on a matter of public interest; points out errors made by the Government for the purposes of reform; urges a person to lawfully attempt to procure a change in law; or tries to show that certain persons (i.e. Sovereign; the Governor-General; the Governor of a State; the Administrator of a Territory; or an adviser of the above) were mistaken in any of their policies or actions.

These exceptions are relevant in the teaching context. For example, commenting on the arguments for and against terrorism would not fall within the definition of sedition. Studying case examples of terrorists, terrorist activities or the definition of ‘terrorism’ itself would also fall outside the definition of sedition. The important point to note here is that sedition will only arise where the statements are made with the intent of encouraging the audience, in this case students, to actively use force or violence against the Government.

2. Power to Obtain Documents

Under this section, an Australian Federal Police officer may require you to provide the following information or documentation, where it is in your possession and control and is relevant to an investigation into a serious terrorist offence:
(a) details about whether a specified person travelled or will travel between specified dates or specified locations; and
(b) details about whether a specified person resides at a specified place or who resides at a specified place.

This might for example include information about colleagues or people you come into contact with during your research activities.

Please note that the documents you supply can not be used as evidence against you in criminal proceedings (except for prosecuting you for obstructing an AFP investigation or supplying misleading information/documents).

You will be given 14 days to comply with any notice issued. Failure to comply attracts a maximum fine of $3300.

It is an offence to disclose the existence or nature of a notice to produce information/documents unless it is reasonably necessary to do so to obtain the documents required or disclosure is made to obtain legal advice (i.e. from the Legal Office).

3. Measures Affecting Your Personal Liberties

The Act also introduces a number of measures which may require you to do certain things or refrain from certain actions, where it is reasonably necessary to prevent the commission of a terrorist offence.

These measures may impact the conduct of your research activities, as they can prevent you from contacting people or require you to remain in a specified place.

(a) Control Orders

An AFP Officer may apply to a court for an interim control order to be issued against you where he/she believes it is necessary to “substantially assist in preventing a terrorist act” or where you have “provided training to, or received training from, a listed terrorist organisation”.

If an interim control order is issued against you, you may be required to do one or more of the following:
(a) not be at specified areas or places;
(b) leave Australia;
(c) remain at specified premises between specified times or on specified days;
(d) wear a tracking device;
(e) not communicate/associate with specified individuals;
(f) not have access to or use of specified forms of telecommunication or other technology (incl. internet);
(g) not possess or use specified articles or substances;
(h) not carry out specified activities;
(i) report to specified persons at specific times and places;
(j) be photographed; and
(k) allow impressions of your fingerprints to be taken.

If an interim control order is taken out against you, you will be given a copy of the interim control order and provided with sufficient details to enable you to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order. The interim order will specify its duration (which can not be more than 12 months) and the day on which you must attend court for either the confirmation, variation or revocation of the interim order. Your lawyer may obtain a copy of the interim order at a place designated in the interim order. A copy is not delivered to them.

After service, the AFP Officer must decide whether to apply to the court to have the interim order confirmed (i.e. made final). The decision must be made at least 2 days before you are required to attend court. If the AFP Officer decides not to have interim order confirmed, the order will cease to exist.

At the hearing to have the order confirmed, you (and your representative(s)) will permitted to make submissions and call evidence on whether the order should be declared void, revoked or varied.

If confirmed, the control order may remain in force for a period of time not exceeding 12 months after the day on which the interim order was first made.

The maximum penalty for contravening a control order is 5 years imprisonment.

(b) Preventative Detention Orders

A preventative detention order allows an AFP Officer to take you into custody for a short period of time where he/she believes it is necessary to prevent an imminent terrorist act occurring or preserve evidence of, or relating to, a recent terrorist act.

An AFP Office will apply to an issuing authority (i.e. Magistrate) for a preventative detention order if they are satisfied that there are reasonable grounds to suspect:
(a) you will engage in a terrorist act;
(b) you possess a thing that is connected a terrorist act;
(c) you have done an act in preparation for, or planning, a terrorist act; or
(d) a terrorist act has occurred within the last 28 days and it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act.

You may be detained for an initial 24 hour period. This period can be extended by the issuing authority for a further 24 hour period.

During detention, you cannot be questioned except to confirm your identity, or to enable safe detention.

You must be given a copy of the order with a summary of the grounds on which the order was made. Your lawyer will also able to obtain a copy of the order and a summary of the grounds for making the order.

During detention, you may contact a family member and the University solely for the purpose of letting them know you are safe but are not able to be contacted for the time being. You will not be permitted to disclose the details of the preventative detention order or the fact that you are being detained under the order.

(c) Prohibited Contact Order

In conjunction with a preventive detention order, an AFP Officer may apply to an issuing authority for a prohibited contact order to prevent you from contacting specified persons.

The AFP Officer may apply for a preventative contact order where he/she is satisfied that the order is reasonably necessary to:
(a) avoid action being taken related to a terrorist act;
(b) prevent serious harm to a person;
(c) preserve evidence of, or relating to, a terrorist act;
(d) prevent interference with the gathering of information about a terrorist act or its preparation; or
(e) avoid a risk to:
i. the arrest of a person who is suspected of having committed an offence related to a Control or Preventative Detention Order; or
ii. the taking into custody of a person in relation to whom a preventative detention order is in force or likely to be made; or
iii. the service on a person of a control order.

Contract Checklist

Things to Think About in a Contract

Termination/Expiry
Indemnity / Insurance
Intellectual Property / Moral Rights / Ownership
Confidentiality
Publishing Rights
GST / tax issues
Commercialisation
Dispute Resolution
Amendments/Variations
Independent Legal Advice
Exchange Rate/Transfer of Money
Risk / Exposure / Key Performance Indicators (KPIs)
Medical Cover – Overseas
Delegation/Authorisation
Law – International/Local/Interstate
Performance / Indicators / Quality
Jurisdiction – Local or Overseas
Privacy
- buying/selling business – NPPs / Due Dilligence
- flow down to subcontractors / grants / consultancy – NPPs / IPPs
Due diligence – review and report
Education clause - EOSS
Effective date / term
Contra Proferentem
Conflict of interest
Negation of employment / representation
Anti-terrorism regulations – pass obligations to sub-contractors
Indemnity insurance for ANU’s negligence
Clearly define acceptance testing & criteria
Performance & service measures & levels
Functionality & business outcomes
Duty of good faith
Trade Practices Act (TPA Act) – ‘carrying on business’
Liquidated damages
Force Majeure
Financial services – giving advice – licence requirements

Privacy

GENERAL INFORMATION

The University is subject to the provisions of the Privacy Act 1988 (Cth). As a result, the University must comply with the 11 Information Privacy Principles prescribed by the Act. In order to assist staff to meet the requirements of the Act and these principles, the University has a policy on privacy called Statement on the Collection, Use and Control of Personal Information.
The Australian Privacy Commissioner has prepared guidelines to the information privacy principles which may be a useful reference if you are seeking clarification of any issues in relation to these principles:

Guidelines to Information Privacy Principles

Further information regarding privacy can be obtained by visiting the Australian Privacy Commissioner's web site or by contacting Michael Haines, the University's Privacy Officer, by email or via the Legal Office:

T: (02) 6125 8489
F: (02) 6125 0683

FREQUENTLY ASKED QUESTIONS

I am a lecturer/administrative staff member and a student has approached me with information about their disability, which is affecting their studies. Can i inform the student's other lecturers?

A student has requested an extension on an assignment based on medical grounds. The student is registered with the Disability Services Unit (DSU), and has been provided a letter by DSU supporting the request for an extension. Can I ask for more detailed medical documentation to support the application?

One of my students is being disruptive in tutorials/lectures. Can I discuss this matter with a colleague?

A student’s parent/family member has contacted me to request information about the progress of their child’s studies. Can I provide the parent with this information?

A real estate agent/bank/credit provider/debt collector has contacted me to request information about a student or staff member’s contact details or other personal information (i.e. salary, length of service). Can I provide this information?

I have been asked by a colleague/student to be a referee. I have information about their health or personal life, which the prospective employer might be interested in. Can I provide this information?

I think one of my students is at risk of serious and imminent threat to their health or life. Can I disclose this information?

A student has approached me with a complaint of inappropriate behaviour by a staff member in my faculty/school/centre. Who can I discuss this matter with and how should this complaint be handled?

I am a lecturer/administrative staff member and a student has approached me with information about their disability, which is affecting their studies. Can I inform the student’s other lecturers?

No. A student’s medical information should not be disclosed without the student’s consent, unless there is an imminent risk of harm to the life or health of the student concerned or another person, or where the disclosure is required by law (for example, via a court subpoena).

If a student approaches you with information about a disability they should be referred to the Disability Services Unit (DSU) http://www.anu.edu.au/disabilities/ who will, upon the student’s registration, assess whether any reasonable adjustments are needed to accommodate the student’s disability and facilitate the necessary adjustments to be made to the student’s participation and assessment within a course.

You can also speak with the DSU about the student and the medical issue they raised, or take it up with a responsible officer in your faculty or school.

The student could also be made aware of the counselling services offered by the University to students via the University Counselling Centre http://www.anu.edu.au/counsel/index.php

The University’s Disclosure of Information by Students with a Disability or Illness Policy (20020493) may also provide guidance http://info.anu.edu.au/Policies/_DVC/Policies/Disclosure_of_Information_by_Students_with_a_Disability_or_Illness.asp

Another useful resource is the Regional Disability Liaison Officer’s webpage entitled, “Choosing Your Path, Disclosure: It’s a Personal Decision” which provides useful information to staff and students in the tertiary sector: http://sites.uws.edu.au/rdlo/disclosure/

Not really. Disclosure of detailed medical information is sometimes quite a sensitive issue, and students may choose to limit the disclosure of information about their illness or disability. The available medical documentation may also include other sensitive personal information that is not relevant to the particular ‘adjustment’ (i.e. extension) being requested. Services such as the DSU, the Counselling Centre and the University Health Service have experience and skills in assessing medical documentation and conditions, may have a more detailed knowledge of the student's medical condition or disability(s) and have strict guidelines for making recommendations for academic adjustments. It is appropriate to rely on the knowledge and expertise of these specialist services in making decisions about whether to make academic adjustments.

If you have any concerns about the recommendations, or would like to clarify any issue associated with the circumstances and appropriateness of the recommended adjustment, the most appropriate course of action would be to inform the student that you would like to clarify some points with the person recommending the adjustment (i.e. DSU or other party), and ask for their written consent to contact the person concerned before making the final decision. It is likely that the person recommending the adjustment will require a copy of the consent, before they discuss this issue with you.

One of my students is being disruptive in tutorials/lectures. Can I discuss this matter with a colleague?

You may discuss a student’s disruptive behaviour with other colleagues (who may or may not teach the particular student) for the purpose of formulating a course of action to deal with the student’s behaviour. This may involve the disclosure of the student’s identity and information in order to adequately address the situation. Such disclosure should be exercised with discretion and in a professional manner, directly related to the resolution of the disruptive situation, preferably also involving your Head of School, Dean or Director.

It is also important to remember that a student’s disruptive behaviour may be associated with a disability. Whilst disability or illness does not excuse disruptive behaviour or make it acceptable, it may provide some understanding of potential causes and influence the strategies used to address the behaviour as well which support services it may be appropriate to involve.

When addressing these types of disruptive situations these areas of the University, in addition to your faculty/school, can be consulted for advice and support. In some cases, they will be able to discuss and coordinate a response with your area:

The Adviser to Staff (who provides professional counselling and advice to all staff, on work-related or personal matters).
Human Resources Division (will refer staff to the appropriate services available on campus and will follow up on employment/stress related issues);
The Counselling Centre (which can provide practical guidance and assistance in dealing with distressed and/or disruptive students);
The Disability Services Unit (as a contact point for students with disabilities and liaison with a student’s faculty/school/centre);
The Director of Student and Academic Services (to assist in the facilitation of specific measures to address particular disruptive students (particularly where the student is enrolled in more than one area of the University)); and
The Legal Office (which can provide practical guidance in dealing with the legal issues associated with privacy and disability);

Disclosure is also permitted to other staff or persons where there is an imminent risk of harm to the health, safety and welfare to the student or another person, and the disclosure is directed to addressing or minimising that imminent risk. For example, notifying your Dean or Director, ANU Security and/or University Counselling Centre, or in an extreme situation, the police.

The same procedures can be followed where a student is being disruptive or difficult with administrative staff in a faculty/school/centre. In such cases, the Head of School, Dean or Director would be the recommended first point of contact. Some faculties/schools or centres may have designated personnel who can be consulted in this type of situation.

A student’s parent/family member has contacted me to request information about the progress of their child’s studies. Can I provide the parent with this information?

No. The University must not disclose personal information about a student (for example, course marks and attendance) to any person, including a parent, without the prior consent of the student.

The best course is to explain to the person requesting the information that you could speak with them if you had the consent of the student (preferably provided in writing).

There are limited exceptions to this rule. Disclosure is permitted:

where the information may be necessary to prevent or lessen a threat of death or injury to the student or someone else; or
if the University is required to disclose the information by law.

Examples of disclosure required by law to third parties, including parents, may include:

where the individual gives their express consent;
where the disclosure is to a law enforcement agency to locate a person who has been reported as missing to the police;
where the disclosure is reasonably necessary in order to investigate an offence where there are reasonable grounds to believe an offence has been committed;
where the disclosure is reasonably necessary for the protection of the public revenue (i.e. Centrelink, ATO etc.);
where the disclosure is made in connection with proceedings for an offence or for law enforcement purposes;
where the disclosure is authorised by a subpoena, search warrant or statutory instrument.

If you believe one of the above exceptions apply you should seek immediate advice and approval from your Head of School/Faculty prior to disclosure and consult the Privacy Officer or Legal Office.

No. Prior consent from the student or staff member concerned is required before the University can disclose personal information about them to any person (i.e. bank, debt collector). Written consent of the student or staff member is recommended before making this type of disclosure.

I have been asked by a colleague/student to be a referee. I have information about their health or personal life, which the prospective employer might be interested in. Can I provide this information?

Providing health or personal information about a colleague/student to a prospective employer will breach the colleague’s/student’s personal privacy, unless consent has been obtained. It is best to discuss with the subject of the reference what information you are expected to give to the prospective employer.

When providing a referee report it is important to only disclose information about the colleague/student that is within the colleague’s/student’s reasonable expectations (i.e. information that relates to their skills, work experience and personal attributes relevant to the job description), and relevant to the job description needs. It is important not to mislead the person to whom you are providing a reference, hence if you are uncomfortable not disclosing particular information to the prospective employer, it is best not to volunteer to be a referee.

I think one of my students is at risk of serious and imminent threat to their health or life. Can I disclose this information?

Yes. Where you consider there is a serious and imminent risk to the life or health of a student you should refer the matter to your Dean or Head of School/Faculty/Centre or if you believe there is no time to do so, seek the immediate advice of the Head of the Counselling Centre or ANU Security to ensure that the University acts quickly and appropriately.

A student has approached me with a complaint of inappropriate behaviour by a staff member in my faculty/school/centre. Who can I discuss this matter with and how should this complaint be handled?

The University will not proceed with an entirely anonymous complaint. Despite this, the identity of the student can be restricted as appropriate. In this case, the identity of the student might only be disclosed to the staff member’s supervisor in the first instance, or the Dean/Director or Head of School/Centre/Faculty or other staff member(s) with the delegated responsibility to handle formal staff misconduct proceedings (i.e. an Associate Dean or Deputy Director etc.)
You should not disclose the identity of the student to the staff member to whom the complaint relates, without the consent of the student.
The resolution of such complaints should be in accordance with the procedures outlined in the University’s Grievance Procedures and Guidelines, or alternatively, the current Enterprise Agreement, and guided by the principles outlined in the University’s Code of Conduct. The Equity and Diversity Unit and the Adviser to Staff are useful reference points when dealing with staff and student grievances.
It is also important to maintain the staff member’s confidentiality, in addition to the student’s, when dealing with a complaint under this category.

Contracts

INTRODUCTION TO CONTRACTS COURSE NOTES

Receiving a Contract	Negotiating a Contract	Need Help? Legal Office Rescue!

RECEIVING A CONTRACT

TIMELINE FOR A CONTRACT

Read the document – if you do not understand it, you cannot administer or manage it.
Identify the risk and exposure for the University.
Recognise and fully understand the obligations, activities & requirements of parties.
Understand the warranties, liquidated damages clauses, exclusions and limitations of liability, termination and indemnities.
Negotiate – a better position may be possible.
Execute – properly and according to delegation authority of Council.
Formalise changes/variations.
Administer/Manage – don’t forget it.
Termination/expiry - be aware and understand.
Don’t allow everything to turn to custard - seek advice early.

WHAT TO LOOK FOR IN THE CONTRACT

Upon receiving a contract, you should check whether the contract contains basic information such as:

A. The correct legal names of the parties. That is:

At least 2 parties involved
Correct institution, company or individual named
ABN/ACN correctly identified
Correct identification is important
Handy sites to check legal title: www.abr.business.gov.au or www.asic.gov.au

"THE AUSTRALIAN NATIONAL UNIVERSITY, ABN 52 234 063 906, an institution pursuant to the Australian National University Act 1991 (Cth) through and limited to the {insert name of college/faculty/school/department/centre}, of Acton, in the Australian Capital Territory, 0200, Australia (‘the ANU’)."

B. The dates (start and finish) or term of the agreement.

C. The responsibilities and obligations of the parties respectively.

D. The terms of payment or other commercial consideration.

E. The procedure for termination of the agreement.

F. A signature line for the correct ANU delegate to sign.

Does the person with the appropriate delegation agree to execute the document? A briefing or explanation may be required why they should sign.

signature_block

You should then review the content of the contract, keeping in mind questions such as, 'Does the arrangement reflect that of the ANU and/or your understanding of what is wanted in the contract?' etc. Please look at the CONTRACT CHECKLIST for more aspects to consider.

REMEMBER: The Legal Office is here to help if you need it!

NEGOTIATING A CONTRACT

If the legal document does not meet the ANU's understanding of the deal, you may need to negotiate with the other party/parties. Here are a few helpful tips for negotiating:

Keep focused and don’t be distracted. Try and stick to what you intended.
Consider what is needed to be undertaken and ensure it is covered in the contract.
Maintain your position but be prepared to give a little.
Have a fall back or alternate position that is acceptable.
Consider an ‘out’ – termination.
Ask questions if you do not understand.
Avoid drifting into contract while negotiating.
Seek help if necessary.
Maintain composure.
Don’t be afraid to walk away if necessary.

REMEMBER: The Legal Office is here to help if you need it!

NEED HELP?

REMEMBER

IF YOU ARE UNCERTAIN OR HAVING DOUBTS THEN PLEASE GET LEGAL ADVICE – EARLY.

Please call the Legal Office on 5-8489 or 5-4394 for assistance or

fill out the Request for Legal Advice Form and

e-mail “Legal.Office@anu.edu.au”.

Copyright

The material available from the Australian National University (ANU) web site comes from a number of sources including staff and students at the University, third parties who have given permission for use of their material, and material copied under statutory licences. Accordingly, no material available from the ANU site may be copied, reproduced or communicated without the prior permission of the ANU. Requests for permission for use of the material should be made to:

Pro Vice-Chancellor (Academic Development & Information Services)
Second Floor
Chancelry - Building 10
East Road
Canberra ACT 0200.

DISCLAIMER

While the Australian National University (ANU) has used all reasonable endeavours to ensure the information on this site is as accurate as possible, it gives no warranty or guarantee that the material, information or publication made accessible is accurate, complete, current, or fit for any use whatsoever. No reliance should be made by a user of the material, information or publication accessed via this site. The user should instead seek confirmation with the originating area/department or other body within the ANU before making use of the material, information or publication.

The ANU accepts no liability or responsibility for any loss or damage whatsoever suffered as a result of direct or indirect use or application of any material, publication or information made accessible via its web site.

The ANU provides links to companies/organisations and information external to the University. In providing such links, the ANU does not accept responsibility for, or endorse the content or condition of, any linked site.

The ANU reserves the right to vary the material, information or publication on this web site without notice.

PRIVACY

When you look at the Australian National University (ANU) web site our server makes a record of your visit and logs the following information:

your browser’s internet address;
the date and time of your visit to the site;
the pages you accessed and documents downloaded;
the previous site visited;
the type of browser you are using; and
the username entered if accessing a restricted site.

The ANU uses this information for statistical purposes and for system administration tasks to maintain this service. We do not attempt to identify individuals as part of our regular business practices however in the unlikely event of an investigation, the ANU, a law enforcement agency or other government agency may exercise its legal authority to inspect our server's logs.

If at any stage you provide us with your email address either as part of a message or by completing a web form, we will only use your email address for the purposes for which it was provided. We will not subscribe your email address to any mailing list without your consent.

External sites that are linked to or from the ANU site are generally not under our control or responsibility and you are advised to review their privacy statement.

The ANU is deemed an ‘agency’ within the meaning of the Privacy Act 1988 (Cth) and as such complies with the obligations of the Privacy Act within that meaning.

Requesting Legal Advice

PROCEDURE FOR REQUESTING LEGAL ADVICE

All requests for legal advice should be made by submitting a Request for Legal Advice Form.

Requests for legal services and legal advice should be made by the relevant executive, academic or administrative area and should always be directed to this Office. Outside/external legal firms are not to be approached without the prior approval of the University Counsel. Legal accounts must also be directed to the University Counsel. It is preferred that requests be in writing so that complete, accurate information is provided at the outset of the matter. Initial requests should include copies of relevant background documentation, required time frame, and any other relevant information.

CHECKLIST

Please make sure the following information has been considered before requesting a Legal Office lawyer to look at your draft Contract/Agreement:

has the Executive Officer/Business Manager checked through the draft document;
provide relevant background to the draft contract/agreement;
are Researchers satisfied/aware of IP Clauses; and
are there any specific issues you have with the contract/agreement?
have you seen the Risk Management Tool? click here

Contact Us

T: 6125 8489 or 6125 4394

F: 6125 0683

UNIVERSITY LEGAL OFFICE
Room 1.04, Chancelry Building 10, East Road
The Australian National University
CANBERRA ACT 0200

Links and Resources

Sources of law

Legal institutions

State legislation

Overseas legislation

Privacy and Copyright information

Legal Office legislation summaries

Other

Society of University Lawyers (SOUL)

ANU Subpoena Protocol

Subpoenas or Summons, or Notices for Non party Production are court orders issued in legal proceedings requiring attendance at court or the production of documents. The University often receives subpoenas from Courts/Tribunals seeking production of documents in the University’s possession. If your area receives a subpoena you must comply with the following steps:

Check that the subpoena is for the ANU before you accept it. On some occasions you will be required to sign to confirm receipt.
Date stamp the subpoena immediately upon receipt.
Check the schedule attached to the subpoena. The schedule specifies the documents required, for example “all documents relating to (name of employee/student)” or “all academic records relating to (student name).
The schedule may be included within the body of the subpoena or it may be an additional attachment to the subpoena.
All pages of the subpoena, including the schedule, must bear the official Tribunal/ Court seal, stamp or Registrar’s signature.
All subpoenas to be complied with by the University should include conduct money of $55.00. Conduct money is provided to meet the reasonable expenses of the University in complying with a subpoena. For the University this initial conduct money provides for 1 hour of personnel time (searching for documents, photocopying and collating documents) and the cost of photocopying 100 pages.

If the conduct money is in the form of a cheque it must be addressed to the ANU.

If you reasonably believe that the time spent complying with the subpoena and the number of pages to be copied will exceed this base amount of conduct money the University reserves the right to charge the issuing firm an additional amount as below.
- Personnel: $30.00 per hour per person
- Photocopies: $0.20 per page copied (after the first 100 pages)

Please contact the Legal Office on extension 58489 if you believe that the cost of complying with the subpoena will exceed the set amount of conduct money.
If only your area is involved in the searching, photocopying and collating of documents the conduct money may be retained in your budget to cover your costs. If another area of the University assists you with complying with the subpoena reimbursement of their costs also need to be met by the conduct money.

If requirements 1, 3, 4, or 5 above are not met by the original subpoena please contact the Legal Office on extension 58489.
The Legal Office will contact the issuing firm or body who should issue new documents with any missing element included and possibly a later compliance date, depending upon the information required and the period of time remaining until the compliance date.
Check the subpoena for discrepancies, for example, the spelling of a name or incorrect dates. If there is discrepancies contact the issuing firm or body to clarify. Significant changes should be confirmed in writing.
Ensure there is adequate time to comply with the subpoena. You should have at least 14 days from the date of receipt until the compliance date. If you believe it is reasonable that you have an extension of time to comply with the subpoena please contact the Legal Office. If reasonable, a request will be made in writing to the firm or body that issued that subpoena.
The issuing firm or body should include as much information as possible to ensure the correct documents are presented to the court, for example, date of birth, middle name, maiden name, employment position held or employee number.

If the identity of the subject is unclear contact the issuing firm or body and ask for further details to identify the person. These details should also be confirmed in writing by the issuing firm or body.
Subpoenas should be faxed to the Legal Office (fax on 50683) on the day of receipt to ensure that it is reasonable to comply with the subpoena and to maintain the University’s records.
To comply with the subpoena search all possible records, even those that are only remotely possible. Your search will depend upon the scope of the request in the schedule.
Check whether photocopied documents are acceptable in complying with the subpoena. This information is usually stated on the subpoena however you can contact the issuing firm or body if it is unclear. There is no need for photocopied documents to be certified as copies unless specifically required by either the firm or the court.

If possible, do not send originals. If you are required to send originals, please inform the Legal Office. Record all files numbers and any other identifying information of the original documents. Arrangements must be made with the issuing firm or body for the return of the documents at the conclusion of the legal proceedings.
Once you have completed your search, photocopy every document including notes attached to the file.
Keep a complete copy of the subpoena and the documents to be forwarded to the issuing firm or body.
Write to the legal firm, Court, or Tribunal (the subpoena will specify when and to whom the documents are to be supplied), enclosing the photocopies of documents and a copy of the subpoena received.

Ensure that if you send the documents to the Court that they will arrive the day before the compliance date.
If you have any questions or concerns, please contact the Legal Office on 58489.

Issuing Subpoenae to the ANU

When issuing a subpoena, summons or notice for non-party production (“Subpoena”) to the Australian National University, please note that the following procedures have been adopted by the University to enable staff to respond to a subpoena efficiently:

Address for service

Subpoenae should be addressed to “The Proper Officer” and delivered to:

Legal Office
1st Floor, Chancelry Building
East Road
The Australian National University
Acton, ACT, 0200

Time for compliance

Please allow at least 14 days before the date required for production to enable the University to search for and locate any documents that match the description in the subpoena. If the documents are stored off-campus it may take more time to search the records.

Schedule

The University requests that the description of documents sought be as specific as possible. This includes supplying the following where available:

identifying details about any person who is the subject of the subpoena, such as a date of birth or student/employee number
the type of documents required
the time period for which documents are required
any specific areas of the University from which documents are sought

Conduct money

The purpose of conduct money is to provide a reasonable recompense for the cost to the University of complying with a subpoena. Those costs include staff time in locating and searching records, resources involved in copying documents, and delivery of documents to the appropriate Court or Tribunal. The University has assessed the minimum cost of handling a subpoena to be $55.00 and requests that this sum be made available upon service of any subpoena. Cheques should be made out to “The Australian National University”. This amount will cover up to one hour of staff time searching records, copying up to 100 pages and delivery. Where this amount is expected to be insufficient to cover the costs associated with the subpoena, the University will notify the issuing firm as soon as is practicable that additional costs may be incurred. Additional costs will be assessed at the following rates:

staff time @ $55.00/hr
photocopying documents @ $0.20/page
professional time @ $250.00/hr

If you have any questions regarding these requirements, please do not hesitate to contact the Legal Office in writing at the address shown above, email or phone the office on 6125 8489 for further information.

Ken Grime
University Counsel

Legal Advice

Range of Services

The University Legal Office provides a range of legal services to the Executive, academic and administrative areas of the University. The range of services provided include:

General legal advice
Drafting and negotiating contracts, licences and leases
Dispute resolution
Litigation
Interpretation of legislation including legislation affecting the University as well as the ANU Act, Rules and Statutes
Advice on intellectual property issues
Oversight of legislative and policy drafting
Liaising with and monitoring external lawyers

Other matters

Queries in relation to the following non legal matters should always be directed to the following area before coming to this Office for assistance.

Compliance and risk matters - Risk Management & Audit Office
Copyright matters - University Library
Industrial relations matters - Organisational Development
Insurance related matters (e.g. property insurance; public liability, personal accident and travel) - Insurance Office
Personnel matters - Human Resources
Property Management matters - Facilities & Services
Research grants - Research Office
Staff related discrimination matters - Equity and Diversity Unit
Student related matters - Student Administration and Support Services

Subpoenas, Summons & Notice of Non Party Production

Issuing Subpoenae to the ANU

When issuing a subpoena, summons or notice for non-party production (“Subpoena”) to the Australian National University, please read Issuing Subpoenae to the University. It outlines the procedures that have been adopted by the University to enable staff to respond to a subpoena efficiently.

ANU Internal Subpoenae Protocol

The University regularly receives Subpoenae, Summonses and Notices to Produce (the term “Subpoena” is used as shorthand for any of the above). These are court orders issued in legal proceedings requiring attendance at court or, more commonly, production of documents required for those proceedings.

To ensure the University meets its obligations in relation to these orders, please ensure the ANU Subpoenae Protocol is adhered to, and that all staff members are familiar with it. Please distribute the ANU Subpoenae Protocol to all staff members.

If you need any further information, please call the Legal Office on x58489 or email with your question.

Receiving a subpoena

Check that the subpoena is for the ANU before you accept it or sign anything confirming receipt.
Date stamp it immediately.
Forward the subpoena to the Legal Office, Chancelry Building 10, for action. Please include a brief note or memo indicating who received the subpoena, and who Legal Office staff may contact in your area if we need any further information.

Complying with a subpoena

The Legal Office will coordinate the University’s response to the subpoena, but may require assistance from particular areas within the University. Usually, you will be contacted by the Legal Office requesting all files or documents in relation to a particular person. This will involve making an ordinary (ie uncertified) photocopy of every document in your possession and providing them to the Legal Office within a specified time frame. Please be aware that where a subpoena is received that requires production of records from your department or area, resources may need to be allocated to handle this work. Where the work required by your area is substantial, keep records of all resources including staff time and provide these details at the same time as the documents. The Legal Office may be able to bill the requesting firm for expenses incurred by the University. Occasionally, original files will be required by the Court or Tribunal. When this is the case, the Legal Office will keep records of what documents have been provided, and will return the files to you as soon as possible. As delays are common in court proceedings, please keep a copy of all original records if you believe you might need to refer to them before the completion of proceedings.

Where an area receives subpoenae frequently, the Legal will arrange the necessary training to enable appropriate staff to comply with subpoenae directly.

Personal Advice

Please note that the University Legal Office is unable provide personal legal services to members of staff or students. The following sources may be able to assist in personal legal problems:

The Law Society of ACT

Legal Aid Office

Students Association Legal Officer

Youth Law Centre ACT

Staff Training

The University Legal Offices conducts Legal Education courses and seminars as outlined below. Course dates for 2009 will be available on this page from early 2009.

Please note that registration for Legal Office courses commences around a month before the course date, and early enrolments will not be accepted.

An email with details of the course will be sent a month before the course date, and enrolments will open at this point.

Please register here for Legal Office courses. Please note that a fee of $50 will be charged for non-attendance.

Trade Practices Seminar

The Trade Practices Seminar is for employees of the University who have responsibility for advertising and marketing or providing information for student handbooks, websites or other publications. The information provided must comply with the Trade Practices Act 1974 (Cth). This seminar is designed to help protect the University by ensuring staff are aware of their obligations to consumers (students, competitors etc) under the Act.

This course is postponed and will be held in November. An invitation email will be sent when registrations are open.

Introduction to Contracts

This is an introductory training session for employees who review or negotiate contracts. It describes what a contract is and what factors to consider when negotiating. It goes into some detail explaining technical legal requirements and terminology, explaining common clauses such as warranties, insurance, indemnification, termination, and force majeure. Finally, it discusses and explains contract terms you need to understand in order to negotiate the best possible deal for the ANU and your section of the University.

The next course will be held early next year.

Intellectual Property and Advanced Contracting

This course is designed for staff who deal frequently with contracts and contract negotiations as a part of their position.

IP is a central part of many university contracts. A significant part of this course explores the nature of intellectual property (patents, trade marks, copyright, trade secrets etc) and dealing with IP in typical university contracts. The knowledge component may be partially provided through an online quiz (approximately 30 minutes) undertaken before the workshop. Participants will be provided with access to the quiz after registering for the course, if the online component is included. (This would allow more time for workshop exercises during the course itself).

The course focuses on skills development, concepts and tools for effective contract drafting and negotiation. Participants will have the opportunity to participate in workshop exercises dealing with complex IP/contract issues.

Staff must have completed the Introduction to Contracts course before undertaking this course.

The next course will be held early next year.

Privacy

This course will offer an overview of the Commonwealth Privacy Act 1988 as it relates to the University. Participants will be taken through the principles governing access to and use of personal information, including those relating to research. In addition the course will cover the University’s record-keeping obligations for personal information. The course provides useful guidelines on how to respond to requests for information from external persons, agencies or organisations such as the AFP, government departments or even students' parents.

This course will be held on 1 October 2009 from 9:30am - 12:30pm in the Ross Hohnen Room.

A maximum of 35 participants will be accepted for this course.

Student Discipline Rules

This course is essential for all Deans, Directors and Heads of ANU Halls of Residence within the ANU. Deans and Directors of the University and Heads of ANU Halls of Residence are deemed to be ‘Prescribed Authorities’ under the ANU’s Discipline Rules and all incidences of potential student misconduct within your area will be reported to you. You will be responsible for determining if there are reasonable grounds to believe a student has engaged in misconduct. The Rules give you power to make certain findings in those situations where you believe misconduct has occurred. It is important that all Deans, Directors and Heads of ANU Halls of Residence undertake this course to ensure a full understanding of the University’s Discipline Rules and how they may be applied.

The next course will be held early next year.

Disabilities Course

This course is an introductory program designed to provide hands on guidance to University managers dealing with disability issues.

Dates for this course are still to be decided.

Home

Welcome

Please make sure the following information has been considered before requesting a Legal Office lawyer to look at your draft Contract/Agreement:

has the Executive Officer/Business Manager checked through the draft document;
provide relevant background to the draft contract/agreement;
are Researchers satisfied/aware of IP Clauses; and
are there any specific issues you have with the contract/agreement?
Risk Management Tool for research contracts and agreements click here