Conflict of Interests and Related Party Transactions Policy

Last updated 2 February 2024

Part A: Background and purpose

1.Purpose

As a charity registered with the Australian Charities and Not-for-Profits Commission (ACNC), it is important that the RACGP adopts best practice governance policies and protocols to ensure that it upholds the highest standards of ethical conduct and maintains public integrity and trust.

The purpose of this policy is to enable the RACGP to set out procedures for declaring and managing conflicts of interest and duty and related party transactions. This policy is intended to support individuals and the RACGP to appropriately manage and disclose conflicts of interest and related party transactions, to comply with its legal requirements, the RACGP Constitution and to align with community expectations of a charity such as RACGP. The Australian Institute of Internal Auditors notes:

Conflicts of interest and corruption are intertwined as a conflict of interest exists where an official could abuse his or her position for private gain, whereas corruption exists where an official does abuse his or her position for private gain. In practice conflicts of interest exist on a spectrum of severity.¹

Conflicts of interest and related party transactions are to be appropriately identified, declared and managed. When left undeclared or unmanaged, conflicts of interest and related party transactions compromise the integrity of or the procedure for making certain decisions, and can result in a breach of laws and undermine public trust and confidence in the RACGP.

2.Application

This policy applies to Board Members, the Company Secretary, Members of any Committee established by the Board, or under the RACGP Constitution, including for example any RACGP Expert Committee or the Council of Censors. This policy is structured as follows:

Part A: Background and purpose;
Part B: Conflicts of Interest and Duty;
Part C: Related party transactions; and
Part D: General terms and conditions.

This policy is to be read in conjunction with the Management Declarations of Interest Policy and the Gifts, Benefits and Hospitality Policy, Whistleblower Policy and is to be understood in the context of RACGP’s Constitution, the Corporations Act and the ACNC Act.

3.Objectives

This policy aims to assist with the identification, declaration and management of conflicts of interest and related party transactions in order to comply with RACGP’s Constitution, the Corporations Act, the ACNC Act.

The Board fosters a culture of integrity. Each Decision Maker has a duty to ensure where

the Decision Maker has a personal interest or other interest in a decision giving rise to a real, potential or perceived conflict; or
the Decision Maker’s duty to the RACGP conflicts with, or gives rise to, a possibility of conflict with his or her duty to another body or organisation,

the matter is properly declared in accordance with this policy and that the corresponding procedures to manage the conflict are properly followed.

Decision Makers are supported to identify conflicts of interest and to speak freely if they believe another Decision Maker may have an undeclared conflict. A conflict of interest must be declared whether it is real, potential, or perceived.

Additionally, directors and committee members of RACGP have duties under the ACNC Governance Standards, including²:

to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable individual would exercise if they were in the position of a director or committee member of RACGP;
to act in good faith in the RACGP’s best interests, and to further the purposes of RACGP;
not to misuse their position;
not to misuse information obtained in the performance of their duties as a director or committee member of RACGP;
to disclose perceived or actual material conflicts of interest;
to ensure that RACGP’s financial affairs are managed in a responsible manner; and
not to allow RACGP to operate while insolvent.

4.Principles

The RACGP is committed to the following principles in applying this policy:

4.1 Interests of the RACGP

Directors have a legal duty to place the interests of the RACGP above their own Vested Interests when carrying out their functions. They will attempt to avoid situations that could raise actual, potential or perceived conflicts of interest and will not participate in decisions where they have Vested Interests.

4.2 Compliance with the Law

The RACGP acts in accordance with the law, the guidance of the ACNC and best practice governance policies and protocols.

The RACGP and its Officers and employees are subject to law that prohibits the involvement in or benefiting from decisions in circumstances where conflicts of interest are not appropriately declared and managed, or appropriate member approval is not obtained in relation to a related party transaction where required. A breach of these laws may carry both civil and criminal implications and may void any benefit gained by a Decision Maker as a result of their conflict.

As a requirement flowing from AASB 124 Related Party Transactions, related party transactions must be reported in the Annual Report whilst other conflicts of interest do not need to be. Although all related party transactions are likely conflicts of interest, not all conflicts of interest will be related party transactions.

4.3 Accountability

Directors and other Decision Makers are accountable for:

identifying and declaring all conflicts of interest, whether their own or of other Directors, including in relation to related party transactions; and
managing their own conflicts and interests, including in relation to related party transactions.

4.4 Materiality

This policy refers to material conflicts of interest in reference to both conflicts of interest and material personal interests. Materiality is a common concept used particularly in accounting to denote a substantive or non-trivial transaction.

ASIC Regulatory Guide RG 76 describes materiality in the context of related party transactions as an interest of some substance or value, rather than merely a slight interest. It goes on to state that in interpreting the phrase, ‘material personal interest’, and in considering whether the related party transaction prohibition applies, companies should bear in mind that a purpose of the prohibition is to minimise risks or harm to the company arising from conflicts of interest.³

When considering conflicts of interest, whether in the context of related party transactions or not, Decision Makers should consider the concept of materiality as it applies to the situation and err on the side of making disclosures, which are important risk minimisation tools.

Part B: Conflicts of Interest & Duty

5.Conflicts

There are two types of conflicts covered by this policy, namely conflict of interest and conflict of duty.

5.1 Conflicts of Interest

A conflict of interest occurs where there is a conflict between a Decision Maker’s duty to act in the best interests of the RACGP and their Vested Interests.

A conflict of interest includes:

actual conflict of interest;
potential conflict of interest which may arise contingent upon the circumstances or some other action; and
perceived conflict of interest where the public could reasonably form the view that a conﬂict exists or could arise that may improperly inﬂuence the Decision Maker’s performance of their duty to the RACGP now or in the future. For example, where an individual works for a pharmaceutical company and makes decisions about standards on prescribing practices in General Practice.

A Vested Interest may be:

direct, where the Decision Maker holds the interest or controls the interest; or
indirect, where the interest is held by a relative or close associate of the Decision Maker; and
pecuniary, where the interest may be monetary or convertible into money such as ownership of property, shares, a right to assets, a beneficiary under a trust or a recipient of benefits, whether in-kind or not; or
non-pecuniary where the interest arises from a personal relationship which may give rise to favouritism or undue influence.

In considering whether a Decision Maker’s Vested Interest may give rise to a conflict of interest, the Decision Maker must consider the:

nature and type of the Vested Interest;
relationship distance between the Vested Interest and the duty to the RACGP. For example, the interest of a second cousin may be seen to be less proximate than the interest of a spouse;
quantum of the interest if pecuniary; and
overall circumstances and context of the interest.

5.2 Conflicts of Duty

Conflicts of duty occur where a Decision Maker’s duty to act in the best interests of the RACGP conflicts with another duty such as the duty to another organisation, another employer or a private organisation such as an advocacy group, business or other interest group.

A conflict of duty may arise for example where a Decision Maker is:

bound by competing sets of confidentiality restrictions;
unable to act in the best interests of multiple entities at the same time; or
under conflicting duties to disclose and maintain confidentiality at the same time.

Conflicts of duty are to be managed in the same way as conflicts of interest. Conflicts of duty are more likely to arise for contractors to the RACGP, who may have other ongoing contracts with other employers.

5.3 Consequences

Undeclared or unmanaged conflicts may result in:

legal claims by those adversely affected by the decisions or actions, including claims against the RACGP or Decision Makers (including Directors) personally;
investigative or enforcement actions by regulators;
decisions or actions that are not primarily in the interests of the RACGP;
breaches of Directors Duties;
bias or lack of impartiality in decision-making leading to Member dissatisfaction or legal claims;
a lack of open and frank discussion in meetings; and
damage to the public’s perception of the Board; an RACGP Expert Committee; the RACGP; or the General Practice profession.

5.4 Declaration and Register of Interests

Upon commencement as a Decision Maker, that officer must complete a Declaration of Interests Form (the pro-forma of which is attached as Appendix 1) and provide it to the Company Secretary

The Company Secretary must:

maintain a Register of Interests in whatever form the Company Secretary thinks fit which contains the Declarations of Interest of every Decision Maker; and
ensure that the information in the declarations is included in the Register of Interests and that the information is held in compliance with the Privacy Act 1988 (C’th), and the Privacy Policy.

The Chair must:

ensure the Register is available for reference at each Board meeting and is accessible to Decision Makers between meetings for ease of reference.

Decision Makers must:

update their Declaration of Interests on 1 February each calendar year by completing an Updated Declaration of Interests Form (the pro-forma of which is attached as Appendix 2) and provide the updated declaration to the Company Secretary; and
as soon as practicable, provide an Updated Declaration of Interests Form to the Company Secretary when their interests change.

Examples of changes which might give rise to potential conflicts include secondary employment, joining a club, receiving a gift of more than a nominal value or a relative becoming employed by the RACGP. Decision Makers must use their best judgment when considering how a change might give rise to a potential conflict.

The pro-forma Declaration of Interests Form is attached at Appendix 1. An update of Declaration of Interests Form is attached at Appendix 2.

5.5 Public Terms and Other Interests Not Conflicts

A Decision Maker does not have a conflict of interest if:

in a matter relating to the supply of goods or services to the Decision Maker if the goods or services are, or are to be, available to members of the public on the same terms and conditions; or
in a contract or arrangement only because that contract or arrangement may benefit a company or other body in which the Decision Maker has a beneficial interest that does not exceed 1% of the total nominal value of beneficial interests in that company or body.

A Director does not have an interest in a contract merely because the contract insures, or would insure, the Director against:

a liability incurred by the Director as an officer of the RACGP; or
any legal costs incurred by the Director in the defence of civil or criminal proceedings against the Director as an officer of the RACGP.

6. Management of Conflicts of Interest

6.1 Standing Item in Board Meetings

At the start of every Board meeting the Chair will ask every Decision Maker:

whether they have an interest in any item on the agenda; and
cause any declaration made by a Director to be recorded in the minutes of the meeting.

Decision Makers in a meeting must:

declare any interests in any item on the agenda including the nature of the interest and any possible conflict;
if becoming aware of an undeclared interest during the meeting, declare the interest immediately; and
correct or update their Declaration of Interests if necessary when asked by the Chair.

The Company Secretary will ensure that:

the Minutes record any Declaration of Interest made by a Director during the course of the meeting and the steps taken to manage any conflict arising from the interest;
the Minutes record any changes to Declarations of Interests; and
the Register is updated to reflect those changes.

A Decision Maker who believes another Decision Maker may have an undeclared interest will raise this as a query (and may do so in accordance with any whistleblower policy that may be in place), allowing that Decision Maker to declare the interest, if it exists.

The existence of an interest does not always result in there being a conflict of interest. , Where a conflict of interest does exist however, the procedures for managing conflicts of interest as set out in Sections 6 and 7 of this policy must be followed.

6.2 Management of Conflicts

Once an actual, potential or perceived conflict of interest is identified,there are a range of options to manage the relevant conflict of interest such as:

remove – the Decision Maker does not participate at all in any decisions involving the matter in which they have an interest, including attending meetings or receiving information about the decision;
record – details of the conﬂict of interest are recorded by the Company Secretary. Monitoring occurs to check whether this remains the appropriate option;
restrict – the Decision Maker’s involvement in discussion or decision making on the matter is restricted to the extent that minimises the conflict. Monitoring occurs to check whether this remains the appropriate option;
recruit – an impartial third party is engaged to provide advice;
relinquish or resign – the Decision Maker relinquishes their Vested Interest or steps down from their role with the other organisation on a temporary or permanent basis.

Where a Decision Maker identifies a possible conflict of interest (whether their own or anybody else’s), the Chair, in consultation with the Company Secretary must determine how that conflict is to be managed (which may include one or more of the actions outlined above). The Chair will notify the Board at the next Board meeting or sooner if practicable.

Where the Decision Maker with the possible conflict is the Chair, the Chair of the Finance, Audit and Risk Management Committee, and failing that, the Chair of the Nominations and Remuneration Committee, in consultation with the Company Secretary must determine, how the conflict is to be managed. The relevant Committee Chair will notify the Board at the meeting or sooner if practicable.

Management of any potential conflict should seek to minimise its effects and be consistent with the best interests of the RACGP.

If the means for managing a conflict of interest includes excluding a Decision Maker from receipt of papers or discussion on a matter, the Company Secretary will advise the Decision Maker concerned, in writing, of the broad nature of the withheld information and the reason it has been withheld.

Information withheld from a Decision Maker may later become public knowledge, or the potential for conflict may pass. In these circumstances, the conflicted Decision Maker may request the Chair for a briefing about the status of the matter and the particulars of any decisions.

6.3 Option Selection

In considering how a conflict of interest is to be managed, the relevant Decision Makers must take into account:

the objectives and functions of the RACGP;
the matter that is to be discussed and determined;
the nature of the conflict (e.g. is it real, potential, or perceived?);
the severity of the conflict, including:
- the amount, scope, and likelihood of any expected benefit (For example, is it a large benefit primarily to the Decision Maker or a small benefit that thousands of people including the Decision Maker will receive?); and
- any other relevant circumstances (For example, if the conflict relates to a Decision Maker’s partner working at an organisation about which the RACGP is to make a decision: is the partner currently working there as a Decision Maker? Or did they leave a few years ago from a large organisation in which their work was not connected to the decision being made by the RACGP?);
the potential effect of the conflict, including:
- the extent to which the Decision Maker’s ability to make an impartial decision in the interests of the RACGP could be compromised, or could reasonably be seen to be compromised; and
the overall likelihood that the conflict of interest may affect public or government confidence in the integrity of the RACGP and its decisions.

6.4 Management of Conflicts during Board Meetings

Where at the commencement of a meeting a Decision Maker declares an interest and its potential for conflict, the Board may direct that Decision Maker to leave the meeting to enable the remaining Decision Makers to determine what if any steps should be taken to manage the potential conflict of interest.

Regardless of whether or not the Decision Maker making the declaration is required to leave the meeting, that person must (in accordance with clause 76 of the RACGP Constitution) abstain from discussion on the matter the subject of the conflict and must not vote in respect of the matter.

If that Decision Maker does so vote that vote does not count.

The Company Secretary will record the decision taken by the disinterested Decision Makers in the Minutes, including the nature and extent of the conflicted Decision Maker’s interest in the matter, its relation to the affairs of the RACGP and the steps taken to address the conflict of interest.

If the Decision Makers who do not have an interest in the matter decide there is a conflict of interest, as a minimum standard of conduct, conflicted Decision Makers must (in accordance with clause 76 of the RACGP Constitution):

at the request of the disinterested Decision Makers, leave the room at the start of the relevant agenda item and not return until the start of the next agenda item;

not discuss the matter at all with any other Decision Maker (in the meeting or otherwise); and

not participate in any decision on the matter (and if the relevant Decision Maker does so vote their vote does not count).

The above procedure for managing conflict of interests at meetings will not apply to Board members who have sought and obtained ASIC’s approval to participate under section 195(3) (Participation with ASIC approval) of the Corporations Act 2001 (Cth).

7. Recording of Decisions to Manage Conflicts

The Company Secretary must ensure that a decision relating to how a conflict of interest is to be managed, including if no action is taken, is accurately recorded. That record must describe:

the action taken to manage the conflict of interest (if any); and
why the relevant Decision Maker has chosen that action and why it is in the public interest to manage the conflict of interest in that way.

Part C: Related party transactions

8. Related party transactions

Transactions between RACGP and a related party of RACGP may raise a number of issues, both legally and reputationally, including the following:

an actual or perceived conflict of interest between RACGP (or its directors) and the related party;
a potential breach of duties by RACGP directors where they fail to act in the best interests of RACGP, given their interests in the related party; and
a potential breach of Chapter 2E of the Corporations Act, which provides that a public company must not provide a financial benefit to a related party without first obtaining member approval, subject to certain exceptions.

A ‘financial benefit’ is defined broadly in the context of related party transactions, and can include providing or receiving services, buying or selling assets, and taking up or releasing obligations in relation to the related party.

9. Who are ‘related parties’ of RACGP?

While the term ‘related parties’ is currently not defined in the ACNC Act, the ACNC refers to the definition of ‘related parties’ provided by the Australian Accounting Standards Board to including the following in the context of charities registered with the ACNC4:

a person that is connected to the charity, such as a director or a Close Family Member of the director that has control or joint control of the charity;
an organisation that is connected to the charity and has control or significant influence over the charity, such as a parent entity of the charity;
an organisation that the charity has control or significant influence over, such as a subsidiary entity;
an organisation that is a member of the same group as the charity (for example, fellow subsidiaries);
a member, or a Close Family Member, of the key management personnel of the charity (the people with authority and responsibility for planning, directing and controlling the activities of the charity directly or indirectly); and
an associate (an entity over which the charity has significant influence) or joint venture (a joint arrangement whereby the charity with another entity or other entities have joint control of the arrangements and have rights to the net assets of the arrangement).

10. Arm’s length exception to obtaining member approval

If the financial benefit is provided on terms that would be reasonable if the parties were dealing at arm’s length (i.e. if the parties were unrelated), or terms which are less favourable than that, then member approval does not need to be obtained.

In determining objectively what constitutes “arm’s length” in the circumstances, RACGP must consider the following factors:

how the terms of the overall transaction compare with those of any comparable transactions in similar circumstances where the parties were dealing on an arm’s length basis;
the nature and content of the bargaining process involved prior to entering into the transaction;
the impact of the transaction on RACGP (for example, considering a cost/benefit analysis of the transaction from RACGP’s perspective, and whether the transaction is aligned with the purpose or strategic goals of RACGP);
any alternative options available to RACGP; and
any expert advice received by RACGP in relation to the transaction.

In certain circumstances, it may be appropriate for RACGP to obtain independent advice on whether the terms of a proposed related party transaction are fair, reasonable and “arm’s length”.

The RACGP should only rely on the arm’s length exception from obtaining member approval for related party transactions where the Board has determined that the arm’s length exception does apply. The Board must not rely on the arm’s length exemption where it is merely arguable that the arm’s length exemption could apply.

11. Protocol for related party transactions

RACGP has adopted the following protocols in order to manage and appropriately disclose related party transactions:

all related party transactions and relevant interests must be disclosed to the Board (and in the case of transactions, before the transaction is entered into);
directors must not vote on, and must not be present for discussion or votes in relation to, any proposed transaction in which they have a material personal interest5;
decisions and negotiations in relation to the proposed related party transaction must only be undertaken by those directors who are independent of the related party. This may require a subcommittee of the Board to be established for consideration of and decision-making in relation to the related party transaction;
the terms of the related party transaction must be fair and reasonable, and on arm’s length terms or otherwise in accordance with the Corporations Act;
member approval must be sought in advance of entering into the related party transaction where required (i.e. subject to the “arm’s length” and other exceptions provided in the Corporations Act);
the related party transaction must be determined to be in the best interests of RACGP and consistent with the charitable purpose and objectives of RACGP; and
where the Board (or independent subcommittee) determines to enter into a related party transaction, it must be:
appropriately documented;
recorded in a register of RACGP related party transactions; and
disclosed to members of RACGP.

Directors must also ensure that they comply with their duties (including those under the ACNC Governance Standards as noted at section 3 above) when considering any related party transaction.

Part D: General terms and conditions

12.Amendment of this Policy

The Board may make amendments to this policy at any time.

13.Breach of this Policy

A Decision Maker who believes they may have breached this policy must notify the Chair immediately.

If the Chair is of the view that a breach has not occurred, the Decision Maker will declare the interest and potential conflict of interest or related party transaction at the next scheduled meeting, which will then be considered in accordance with the procedure in clauses 6.2 – 6.4.

If the Chair is of the view that a breach of this policy may have occurred, the Chair will notify the Company Secretary. The Company Secretary will notify the Board and will arrange for the Board to determine urgently, and minute, whether a breach has occurred and what steps are to be taken to mitigate the breach.

A Decision Maker who believes another Decision Maker may have breached this policy, but not yet notified the Chair, will bring this to the attention of the Chair, or will approach the other Decision Maker, who will then notify the Chair. If a breach has occurred, the Chair will notify the Company Secretary in writing as soon as practicable.

If the matter concerns a possible breach by the Chair, the Decision Maker will arrange through the Company Secretary for the Board to determine urgently, and minute whether a breach has occurred, and what steps are to be taken to mitigate the breach. If a breach has occurred, the Company Secretary will notify the Board.

Where a breach of this policy is referred to the Board, the Board may make a determination regarding what consequences, if any, should apply for the breach of policy. Failure to act in accordance with the policy may amount to misconduct, and in the most serious cases may lead to a request that the relevant Decision Maker resign or the members of the RACGP being asked to vote on the Decision Maker’s removal.

A Decision Maker who breaches this policy, or improperly uses their position to gain an advantage for themselves or someone else or to cause detriment to the RACGP, may be personally liable for their actions under both civil and criminal law.

Breach of this policy may also be a breach of relevant directors’ duties under the Corporations Act, the ACNC Act and/or the Constitution of the RACGP.

14. Responsibilities

Board	Decides whether this policy has been breached. Responsible for approval of policy and amendments.
Chair	Establishes and Maintain the Register of Interests. Determines how a conflict is to be managed. Receives notification of possible breaches of this policy. Responsible for implementing this policy.
Company Secretary	Records conflicts of interest and decisions regarding their management in Minutes and on the Register of Interests.
Decision Makers	Must identify and declare conflicts of interest, complete and update Declarations of Interests, manage conflicts of interest in accordance with Board decision. Must comply with the policy.

15. Glossary

ACNC	Australian Charities and Not-for-Profits Commission
ACNC Act	Australian Charities and Not-for-profits Commission Act 2012 (C’th)
Best interest	Acting for the benefit of the company/entity, in accordance with the company/entity’s needs and what is best for the company/entity ahead of personal or other interests and in the case of the RACGP consistently with, and in a way that furthers its charitable purpose.
Close Family Member	Close members of the family of a person are those family members who may be expected to influence, or be influenced by, that person in their dealings with the entity and include: that person’s children and spouse or domestic partner; children of that person’s spouse or domestic partner; and dependants of that person or that person’s spouse or domestic partner.
Conflict of Duty	A Decision Maker’s duty to act in the best interests of the RACGP conflicts with another duty such as the duty to another organisation or an employer.
Conflict of Interest	Actual - There is a real conflict between a Decision Maker’s duties and Vested Interests; Potential - A Decision Maker has Vested Interests that could conflict with their duties. This refers to circumstances where it is foreseeable that a conflict may arise in future and steps should be taken now to mitigate that future risk; Perceived - The public or a third party could form the view that a Decision Maker’s Vested Interests could improperly influence their decisions or actions, now or in the future.
Corporations Act	Corporations Act 2001 (Cth)
Decision Maker	Any Board or Committee Member and the Company secretary unless referred to specifically or the context requires.
Declaration of Interests	Details of Decision Makers’ Vested Interests as described in the attached Declaration of Interests form at Appendix 1 or as updated in the attached Updated Declaration of Interests Form at Appendix 2.
Reasonable payment	A payment which is within the limits of reason and not greatly less or more than might be expected for the services or goods being provided by an independent provider. In considering what that might be, a director might ask, bearing in mind the charitable status of the organisation, is the payment fair from the organisation’s perspective and could it be defended in public.
Register of Interests	The Register of Interests is a record, preferably electronic, of all interests of Decision Makers. It contains the information provided by Decision Makers in their annual Declaration of Interests.
Vested Interest	A private relationship or other interest which may cause a conflict of interest.

16. Related Documents, Legislation and Policies

ASIC Regulatory Guide RG 76
Australian Charities and Not-for-profits Commission Act 2012 (C’th)
Corporations Act 2001 (Cth) Criminal Code Act 1995 (Cth) Declaration of Interests Form
RACGP Director Letter of Appointment pro forma RACGP Constitution
Update of Declaration of Interests Form

Compliance
This policy complies with all relevant legislation, in particular:

Corporations Act 2001 (Cth)
Australian Charities and Not-for-profits Commission Act 2012 (Cth)

17. Policy review and Currency

This policy will be reviewed every two years from the last approval date, or when there is a significant change in the intent of the policy.

Version History

Release Notice
Version	Date of effect	Amendment details	Amended by
1.1	5 December 2023	Conflict of interest form links updated	Risk and Compliance team
1.0	17 November 2022	General revision plus new section to deal with related party transactions	Company Secretary
Record no.:
Policy owner:	RACGP Board
Approved by:	RACGP Board		Approved on:	17 November 2022
Next Review Due:	November 2024

Appendix 1 Declaration of Interest Form

Appendix 2 Updated Declarations of Interest Form

Advertising