Universities are increasingly finding themselves dealing with allegations of "corrupt conduct" and/or "misconduct" – that is, conduct which, if proved, could fall within the jurisdiction of a State regulator (Corruption Regulator), established by a State Act (Corruption Act), charged with maintaining the public's confidence in the operation of public sector agencies and combating and reducing the incidence of major corruption and crime in the public sector.
Investigations by a Corruption Regulator (or by a university or external investigator pursuant to a Corruption Act) can pose serious reputational concerns for a university.
In recent years, Corruption Regulators have targeted senior executives, with investigations and/or findings leading to or coinciding with resignations of Vice-Chancellors in Queensland, NSW and Western Australia. These are just the matters that have become public: other senior executives of universities have been the subject of investigations by Corruption Regulators (or independent investigations under the relevant Corruption Acts), but the findings have not led to publication or adverse consequences for the executives involved.
Broader investigations can cause serious reputational damage to the higher education sector. That has undoubtedly followed the recent Four Corners' investigation into the alleged use of unethical, and in some cases fraudulent, agents engaged by Australian universities to recruit international students for admission. This investigation coincided with the release of the NSW Corruption Regulator's April 2015 report, Learning the Hard Way: Managing Corruption Risks associated with International Students at Universities in NSW (ICAC Report).
The ambit of each Corruption Regulator's jurisdiction varies, and conduct which falls within the jurisdiction of one may not necessarily be conduct which another can investigate. Further, the approach and resources of each Corruption Regulator, and sometimes the best way of responding to a matter that is subject to its jurisdiction, also differ.
What is uniform, however, is that each Corruption Regulator has a broad jurisdiction. Relatively less serious conduct by low-level employees can be captured by the various definitions, sometimes triggering an obligation to notify the conduct to the Corruption Regulator and/or report on the outcome of the investigation. For example, allegations that a senior academic engaged in conduct amounting to bullying of a junior academic. Or allegations that casual employees made claims for payment other than strictly in accordance with the terms of their employment. The extent to which a Corruption Regulator becomes involved in a university's investigation and handling of such matters varies between Corruption Regulators (and sometimes between particular investigators of a Corruption Regulator).
More serious conduct by high-level executives/officers, or even members of the governing body, is likely to be of greater interest, and the Corruption Regulator may choose to carry out the investigation itself (using a broad range of investigative powers) or at least, insist on the appointment of a well-credentialed independent external investigator in the first instance to make findings and recommendations.
Ready reckoner for in-house counsel
We have prepared the attached table as a kind of "ready reckoner" for comparing the Corruption Regulators in each jurisdiction, including the legislation pursuant to which they are established, related whistleblower / public interest disclosure legislation, the conduct which they regulate, how that conduct can relate to universities and a summary of their investigative powers.
The table paraphrases the conduct regulated by each Corruption Regulator and is to be used as a guide only and not as a substitute for careful consideration of the relevant legislation and/or formal legal advice to determine whether particular allegations are subject to obligations under a particular Corruption Act.
Click here to view our Comparison of Corruption Regulators in each Australian in each Australian jurisdiction. [embed link to PDF of table here]