Tribunal Conflict of Interest policy

What is a conflict of interest?

A conflict of interest is:

• a situation where a person has a personal interest in a matter which is the subject of a decision or duty of the person

• a situation where the interest, principal, right, advantage or position of one individual or business entity, whether directly or as represented by another, comes into discord, challenge, dispute or harm with those of another

• a situation in which a person owing a duty (usually fiduciary) to provide professional advice or skill, is compromised in the performance of that duty by either providing a similar duty to another whose interests conflict with the first, or by the opportunity to make a personal profit

Each person's position in relation to their conflict of interest (actual or perceived) is determined by their own activities/knowledge, and not that of others. Conflict of interest arises because of the conflict that attaches to that person (whether a staff member, Tribunal member or Presidential consultant) doing a particular thing at a particular time. However, the two roles are regulated differently under the PSA and the Native Title Act 1993 (NTA), with potentially different end results and onuses.

Tribunal staff conflicts of interest and the Public Service Act 1999 (Cth)

The Australian Public Service (APS) Code of Conduct in s. 13(7) Public Service Act 1999 (Cth) (PSA) applies to all NNTT staff, and states:

'An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.'

Therefore the requirements under the Native Title Act 1993 are clear:

• all NNTT staff must disclose all real and apparent conflicts of interest

• all NNTT staff must take reasonable steps to avoid real or apparent conflicts of interest

The addition of the words 'avoid any apparent [conflict]' broadens the scope of the conflict of interest provision from all actual previous/current dealings to all apparent conflicts of interest.

An apparent, or perceived conflict of interest, may arise if a reasonable and objective person looking at a particular situation would be likely to think that a conflict situation exists-for example, because of the particular professional or personal affiliations of a person with a native title claim group or other stakeholder.

What are examples of a real or apparent conflict of interest?

Broadly speaking, there is an actual conflict of interest where, for example:

• a person has a pecuniary interest (ie real estate, shares, partnerships, directorships, trusts) in the matter at hand, or a member of their immediate family has a pecuniary interest in the matter at hand

• a person previously worked for one of the parties

• a person has acted as the legal representative for one of the parties

• a person has family/cultural ties with one of the parties to an application/mediation

What if there is a real or apparent conflict of interest for Tribunal staff?

Any conflict of interest, whether real or apparent, must be disclosed to the staff member's supervisor/manager as soon as they become aware of the conflict. The conflict should be noted on the confidential Register of Conflicts of Interests maintained by People Services.

If it is decided that the disclosed conflict of interest requires further action, strategies should be explored as to how the conflict might be eliminated. A decision will be made by the staff member and manager as to whether:

• the person can continue dealing with the particular file/matter, because the disclosed conflict of interest is deemed not to be a real or apparent conflict of interest

• the person be requested to divest him or herself of the interest, where this is possible, and the staff member is willing to do so-this will probably be more difficult, if not impossible, in the case of a cultural conflict as opposed to some other forms of conflict (e.g .pecuniary)

• the person's duties be rearranged or a permanent or temporary transfer be made to an equivalent position not involved with the conflict

Unlike the NTA in respect of members' conflicts of interests (see below), there is no mechanism in the PSA which expressly allows parties to consent to a staff member acting on a matter once a real or apparent conflict of interest is disclosed, and furthermore, a staff member must take reasonable steps to avoid any real or apparent conflict of interest.

Tribunal members and presidential consultants and conflict of interest provisions in the NTA

The NTA expressly regulates actual or perceived conflict of interest for the positions of Tribunal members and Presidential consultants: see s. 122 and s. 131B. There is no such conflict of interest provision for Registrar's consultants under s. 132 or for Tribunal employees generally.

The definition of conflict of interest is similar in both ss 122 and 131B. The text of s. 122 is as follows:

Meaning of conflict of interest

(b) at any time in the 12 months immediately before that time, the person was so employed or engaged.

What should a Tribunal member or presidential consultant do if he or she has a conflict of interest?

If a Tribunal member or presidential consultant believes that they may have a conflict of interest, whether pecuniary or otherwise, that could conflict with the proper performance of their duties, they should immediately disclose the conflict of interest to the President of the Tribunal. The conflict should then be noted on the confidential Register of Conflicts of Interests maintained by People Services.

Can a Tribunal member or presidential consultant continue duties despite the conflict of interest?

Subsections 122(4)(b) and 131B(4)(b) NTA require a 12 month or more exclusion period for individuals with a conflict of interest as defined in 122(3) and (4), or 131B(3) and (4), from performing their duties as Tribunal members or Presidential consultants in relation to specific matters.

The 12 month period in sections 122(4)(b) and 131B(4)(b) expressly applies to individuals employed or engaged as a consultant to an organisation that has an interest in the subject matter of an application. The implied corollary is that an individual with 'any interest, pecuniary or otherwise' is not relieved after 12 months but when the interest no longer exists.

However, an exception to this applies where the consent of the parties and President is obtained (s.122(2) NTA). The NTA allows the member to disclose the conflict, and if followed by consent of all the parties and the President, the member may continue to act. This flexibility is in contrast to the PSA requirements above.

Summary

If a conflict of interest arises:

• under the PSA, a staff member must disclose any actual or perceived conflicts of interest, and there is no mechanism for the employee to be relieved of the duty to avoid the conflict of interest

• in contrast, under the NTA, a Tribunal member or presidential consultant may not act where actual or perceived conflict unless disclosure is made, the parties consent, and if the President so directs