Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 9 Governance of territory authorities
Notes for pt 9
Note 1 Div 9.1 and div 9.5 apply to a territory authority, whether or not it has a governing board, unless the establishing Act otherwise provides (see eg the Legal Aid Act 1977 , s 94A).
Note 2 The Legislation Act contains provisions relevant to territory authorities, including the following:
• making appointments (s 206, s 207)
• consultation with a committee of the Legislative Assembly (div 19.3.3)
• eligibility for reappointment (s 208 and dict, pt 1, def appoint )
• acting appointments (s 209)
• resignations (s 210)
• effect of appointment irregularity or defect (s 212).
Note 3 The Remuneration Tribunal Act 1995 allows terms and conditions for people appointed to be set by determination under that Act.
Division 9.1 Definitions and important concepts
72 Definitions—pt 9
In this part:
"applicable governmental policies", for a territory authority—see section 103.
"establishing Act", for a territory authority, governing board or governing board member, means the Act that establishes the authority or governing board.
"financial year", for a territory authority, means—
(a) a period of 12 months beginning on 1 July; or
(b) if the territory authority has, in writing, fixed another 12-month period as its financial year—the period fixed.
"governing board member", for a territory authority with a governing board, includes the CEO.
"material interest"—see section 88 (4).
"relevant territory authority"—a territory authority to which part 8 applies is a "relevant territory authority", unless the establishing Act for the authority provides otherwise.
73 Nature of relevant territory authorities
(1) A relevant territory authority—
(a) is a corporation; and
(b) may sue and be sued in its corporate name; and
(c) may have a seal.
(2) A relevant territory authority represents the Territory when exercising its functions, unless the establishing Act for the authority or another territory law otherwise provides.
(3) A relevant territory authority has the same status, privileges and immunities as the Territory so far as it represents the Territory.
74 Powers of territory authorities generally
(1) A relevant territory authority has the legal capacity and powers of an individual both in and outside the ACT (including outside Australia).
Examples
1 to enter into a contract
2 to own, deal with and dispose of property
3 to act as trustee
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) Without limiting subsection (1), a relevant territory authority—
(a) has the powers given to it under this Act or another territory law; and
(b) may do anything that it is authorised to do by a territory law or a law of another jurisdiction; and
(c) may exercise its powers in and outside the ACT (including outside Australia).
Example for par (b)
A territory authority may arrange for the authority to be registered or recognised under a law of another jurisdiction.
(3) A relevant territory authority's legal capacity to do something is not affected by the fact that the authority's interests are not, or would not be, served by doing it.
(4) To remove any doubt, this section does not—
(a) authorise a relevant territory authority to do anything that is prohibited by a territory law or a law of another jurisdiction; and
(b) give a relevant territory authority a right that a territory law or a law of another jurisdiction denies to the authority.
(5) In this section:
"another jurisdiction" means the Commonwealth, a State, another Territory or a foreign country.
75 Execution of documents and assumptions people dealing with relevant territory authority may make
(1) In this section:
"applied Corporations Act provisions" means the following provisions of the Corporations Act:
(a) section 127 (which is about the execution of documents by a company);
(b) section 128 (which is about a person's entitlement to make certain assumptions in dealing with a company);
(c) section 129 (which is about the assumptions that may be made).
(2) The applied Corporations Act provisions apply to a relevant territory authority as if—
(a) a reference to a company were a reference to the authority; and
(b) a reference to a common seal were a reference to any seal of the authority; and
(c) a reference to a director were a reference to a board member; and
(d) a reference to a company's constitution were a reference to this Act and the establishing Act; and
(e) a reference to an officer of a company were a reference to the chief executive officer and any member of staff of the authority; and
(f) a reference to information available to the public from ASIC were a reference to information available to the public from the Territory; and
(g) any other necessary changes, and any change prescribed by regulation, were made.
76 Governing board of territory authority
(1) A territory authority has a governing board if the establishing Act for the authority establishes a governing board for the authority.
(2) To remove any doubt, only the following territory authorities have governing boards:
• ACT Gambling and Racing Commission
• ACT Health Promotion Authority
• ACTION Authority
• Australian Capital Territory Public Cemeteries Authority
• Australian Capital Tourism Corporation
• Building and Construction Industry Training Fund Authority
• Cleaning Industry Long Service Leave Authority
• Construction Industry Long Service Leave Authority
• Cultural Facilities Corporation
• Exhibition Park Corporation
• Land Development Agency
• Stadiums Authority
• a territory authority prescribed by the financial management guidelines.
77 Role of governing board
(1) If a territory authority has a governing board, the governing board has the following functions:
(a) setting the authority's policies and strategies;
(b) governing the authority consistently with the authority's establishing Act and other relevant legislation;
(c) ensuring, as far as practicable, that the authority operates in a proper, effective and efficient way;
(d) ensuring, as far as practicable, that the authority complies with applicable governmental policies (if any).
Examples of policies for par (a)
1 risk management
2 communication with government
3 corporate planning
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) This section does not limit the functions of a governing board.
Division 9.2 Governing board member appointments
78 Appointment of governing board members generally
(1) This section applies to the appointment of the members of the governing board of a territory authority, other than the CEO.
(2) The responsible Minister for the territory authority may appoint the members.
Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see s 207).
Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).
(3) The only criteria for deciding whether to appoint a person as a member are—
(a) the contribution the person can make to the goals and objectives of the governing board; and
(b) the criteria stated in applicable governmental policies (if any) relating to appointments.
(4) However, the establishing Act may prescribe other criteria for deciding whether to appoint a person as a member.
(5) An appointment of a member—
(a) must not be for longer than 3 years, unless the establishing Act allows a longer period; and
(b) is an appointment under the provision of the establishing Act that establishes the governing board.
(6) The conditions of appointment of a member (other than a member required under the establishing Act to be a public servant or statutory office holder) are the conditions agreed between the Minister and the member, subject to any determination under the Remuneration Tribunal Act 1995 .
79 Appointment of chair and deputy chair
(1) The responsible Minister for a territory authority with a governing board may appoint a chair for the board and, unless the establishing Act otherwise provides, a deputy chair for the board.
Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see s 207).
Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).
(2) However, the responsible Minister must not appoint the CEO of the territory authority as chair or deputy chair.
(3) The responsible Minister must try to ensure that the governing board of a territory authority always has a chair and, unless the establishing Act otherwise provides, deputy chair.
80 Appointment of CEO of authority with governing board
(1) This section applies to a territory authority with a governing board.
(2) The governing board of the territory authority must, after consulting the responsible Minister, appoint a CEO for the authority.
Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see s 207).
(3) However, if the CEO is required under the establishing Act to be a public servant, the chief executive of the administrative unit responsible for the establishing Act must, after consulting the governing board and the responsible Minister, appoint a CEO for the authority.
(4) The CEO is a member of the governing board.
(5) However, the CEO is not a member of the governing board if it is considering or deciding—
(a) the appointment, or the ending of the appointment, of the CEO; or
(b) the CEO's conditions of appointment.
(6) The conditions of appointment of a CEO (other than a CEO required under the establishing Act to be a public servant) are the conditions agreed between the governing board and the CEO, subject to any determination under the Remuneration Tribunal Act 1995 .
81 Ending board member appointments
(1) This section applies to a governing board member other than the CEO.
(2) The responsible Minister may end the member's appointment—
(a) if the member contravenes a territory law; or
(b) for misbehaviour; or
(c) if the member becomes bankrupt or executes a personal insolvency agreement; or
(d) if the member is convicted, or found guilty, in Australia of an offence punishable by imprisonment for at least 1 year; or
(e) if the member is convicted, or found guilty, outside Australia of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year; or
(f) if the member exercises the member's functions other than in accordance with section 85 (Honesty, care and diligence of governing board members); or
(g) if the member fails to take all reasonable steps to avoid being placed in a position where a conflict of interest arises during the exercise of the member's functions; or
(h) if the member contravenes section 88 (Disclosure of interests by governing board members); or
(i) if the member is absent from 3 consecutive meetings of the board, otherwise than on approved leave; or
(j) for physical or mental incapacity, if the incapacity substantially affects the exercise of the member's functions.
Note A person's appointment also ends if the person resigns (see Legislation Act, s 210).
(3) The Minister may also end the appointment of the member (the member concerned ) if the board tells the Minister in writing that it has resolved, by a majority of at least 2 / 3 of the members, to recommend to the Minister that the member's appointment be ended.
(4) The governing board may pass a resolution mentioned in subsection (3) only if—
(a) at least 3 weeks written notice of the intention to consider the proposed resolution has been given to the member concerned; and
(b) the member concerned has been given an opportunity to make submissions and present documents to a meeting of the board; and
(c) if the member concerned has used the opportunity mentioned in paragraph (b)—a summary of the member's submissions is recorded in the minutes of the board and a copy of any documents presented is included in the minutes.
Division 9.3 Functions of governing board members
82 Chair's functions
The chair of the governing board of a territory authority has the following functions:
(a) managing the affairs of the governing board;
(b) ensuring, as far as practicable, that there is a good working relationship between the governing board and management of the authority;
(c) ensuring the responsible Minister is kept informed about the operations of the authority.
83 Deputy chair's functions
(1) If the chair of the governing board of a territory authority is absent or cannot for any reason exercise the functions of the chair, the deputy chair of the governing board must exercise the functions of the chair.
(2) However, this section does not apply to a territory authority if the establishing Act for the authority provides that it need not have a deputy chair.
Note The Legislation Act, s 209 deals with acting appointments.
84 CEO's functions
(1) The CEO of a territory authority with a governing board has the following functions:
(a) ensuring, as far as practicable, that the authority's statement of intent is implemented effectively and efficiently;
Example of implementation of statement of intent
achieving objectives in statement of intent
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(b) managing the day-to-day operations of the authority in accordance with—
(i) applicable governmental policies (if any); and
(ii) the policies of the authority set by the board; and
(iii) each legal requirement that applies to the authority;
Example for par (iii)
a direction by the independent competition and regulatory commission that relates to the authority
(c) regularly advising the board about the operation and financial performance of the authority;
(d) immediately advising the board about significant events.
(2) In this section:
"significant event", for a territory authority, means an event that the authority is required to tell the responsible Minister about under section 101.
85 Honesty, care and diligence of governing board members
In exercising the functions of a governing board member, a member must exercise the degree of honesty, care and diligence required to be exercised by a director of a corporation in relation to the affairs of the corporation.
86 Conflicts of interest by governing board members
A governing board member must take all reasonable steps to avoid being placed in a position where a conflict of interest arises during the exercise of the member's functions.
87 Agenda to require disclosure of interest item
The agenda for each meeting of a territory authority governing board must include an item requiring any material interest in an issue to be considered at the meeting to be disclosed to the meeting.
88 Disclosure of interests by governing board members
(1) If a governing board member has a material interest in an issue being considered, or about to be considered, by the governing board, the member must disclose the nature of the interest at a board meeting as soon as practicable after the relevant facts come to the member's knowledge.
Note Material interest is defined in s (4). The definition of indirect interest in s (4) applies to the definition of material interest .
(2) The disclosure must be recorded in the governing board's minutes and, unless the board otherwise decides, the member must not—
(a) be present when the board considers the issue; or
(b) take part in a decision of the board on the issue.
Example
Albert, Boris and Chloe are members of a governing board. They have an interest in an issue being considered at a governing board meeting and they disclose the interest as soon as they become aware of it. Albert's and Boris's interests are minor but Chloe has a direct financial interest in the issue.
The governing board considers the disclosures and decides that because of the nature of the interests:
• Albert may be present when the board considers the issue but not take part in the decision
• Boris may be present for the consideration and take part in the decision.
The board does not make a decision allowing Chloe to be present or take part in the board's decision. Accordingly, since Chloe has a material interest she cannot be present for the consideration of the issue or take part in the decision.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) Any other governing board member who also has a material interest in the issue must not be present when the board is considering its decision under subsection (2).
(4) In this section:
"associate", of a person, means—
(a) the person's business partner; or
(b) a close friend of the person; or
(c) a family member of the person.
"executive officer", of a corporation, means a person (however described) who is concerned with, or takes part in, the corporation's management, whether or not the person is a director of the corporation.
"indirect interest"—without limiting the kinds of indirect interests a person may have, a person has an indirect interest in an issue if any of the following has an interest in the issue:
(a) an associate of the person;
(b) a corporation if the corporation has not more than 100 members and the person, or an associate of the person, is a member of the corporation;
(c) a subsidiary of a corporation mentioned in paragraph (b);
(d) a corporation if the person, or an associate of the person, is an executive officer of the corporation;
(e) the trustee of a trust if the person, or an associate of the person, is a beneficiary of the trust;
(f) a member of a firm or partnership if the person, or an associate of the person, is a member of the firm or partnership;
(g) someone else carrying on a business if the person, or an associate of the person, has a direct or indirect right to participate in the profits of the business.
"material interest"—a governing board member has a "material interest "in an issue if the member has—
(a) a direct or indirect financial interest in the issue; or
(b) a direct or indirect interest of any other kind if the interest could conflict with the proper exercise of the member's functions in relation to the board's consideration of the issue.
89 Reporting of disclosed governing board interests to Minister
(1) Within 3 months after the day a material interest is disclosed under section 88 (1), the chair of the governing board must report to the responsible Minister in writing about—
(a) the disclosure; and
(b) the nature of the interest disclosed; and
(c) any decision by the board under section 88 (2).
(2) The chair must also give the responsible Minister, not later than 31 days after the end of each financial year, a statement that sets out the information given to the Minister in reports under subsection (1) that relate to disclosures made during the previous financial year.
(3) The responsible Minister must give a copy of the statement to the relevant committee of the Legislative Assembly within 31 days after the day the Minister receives the statement.
(4) In this section:
"relevant committee" means—
(a) a standing committee of the Legislative Assembly nominated by the Speaker for subsection (3); or
(b) if no nomination under paragraph (a) is in effect—the standing committee of the Legislative Assembly responsible for public accounts.
90 Protection of governing board members from liability
(1) A governing board member is not civilly liable for anything done or omitted to be done honestly and without recklessness—
(a) in the exercise of a function under a territory law; or
(b) in the reasonable belief that the act or omission was in the exercise of a function under a territory law.
(2) Any liability that would, apart from this section, attach to a governing board member of a territory authority attaches instead to the authority.
91 Indemnification and exemption of governing board members
(1) A territory authority must not exempt a governing board member (whether directly or through another entity) from liability to the authority.
(2) A territory authority must not indemnify a governing board member (whether directly or through another entity and whether by agreement or by making a payment) against any of the following liabilities incurred as a board member:
(a) a liability owed to the authority;
(b) a liability owed to someone other than the authority that did not arise from honest conduct.
(3) A territory authority must not indemnify a governing board member (whether directly or through another entity and whether by agreement or by making a payment) against legal costs incurred as a member if the costs are incurred—
(a) in defending or resisting a proceeding if the person is found to have a liability for which the person could not be indemnified under subsection (2); or
Note A governing board member is not personally liable for certain acts done or omissions made honestly and without recklessness (see s 90).
(b) in defending or resisting a criminal proceeding in which the person is found guilty.
(4) In this section:
"authority" includes a subsidiary (if any) of the authority.
92 Compensation for exercise of functions etc
(1) A person may claim compensation from the Territory if the person suffers loss because of the exercise, or purported exercise, of a function under this part or the establishing Act.
(2) Compensation may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction.
(3) A court may order the payment of reasonable compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case.
(4) A regulation may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.
Division 9.4 Governing board meetings
93 Time and place of governing board meetings
(1) Meetings of the governing board of a territory authority are to be held when and where it decides.
(2) However, the governing board must meet—
(a) at least once every 3 months; or
(b) if the establishing Act requires the governing board to meet more frequently—at the times required under the establishing Act.
(3) The chair—
(a) may at any time call a meeting of the governing board; and
(b) must call a meeting if asked by the Minister or at least 2 members.
(4) The chair must give the other members reasonable notice of the time and place of a meeting called by the chair.
94 Presiding member at governing board meetings
(1) The chair presides at all meetings at which the chair is present.
(2) If the chair is absent and the governing board has a deputy chair, the deputy chair presides.
(3) If the chair and the deputy chair are absent or the chair is absent and there is no deputy chair, the member chosen by the members present presides.
(4) However, the members must not choose the CEO to preside.
95 Quorum at governing board meetings
(1) Business may be carried on at a meeting of the governing board only if at least 1 / 2 the number of members appointed are present.
(2) However, if the establishing Act for the governing board provides that a board member is a non-voting member, that board member is not counted as a member appointed or present for subsection (1).
96 Voting at governing board meetings
(1) At a meeting of the governing board each member has a vote on each question to be decided, unless the establishing Act for the board otherwise provides.
(2) A question is decided by a majority of the votes of the members present and voting but, if the votes are equal, the member presiding has a deciding vote.
97 Conduct of governing board meetings etc
(1) The governing board may conduct its proceedings (including its meetings) as it considers appropriate.
(2) A meeting may be held using a method of communication, or a combination of methods of communication, that allows a board member taking part to hear what each other member taking part says without the members being in each other's presence.
Examples
a phone link, a satellite link
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) A governing board member who takes part in a meeting conducted under subsection (2) is taken, for all purposes, to be present at the meeting.
(4) A resolution is a valid resolution of the governing board, even if it is not passed at a meeting of the board, if all members agree to the proposed resolution in writing or by electronic communication.
Example of electronic communication
(5) The board must keep minutes of its meetings.
Division 9.5 Requirements and obligations for territory authorities
98 Limitations on authorities forming corporations etc
(1) A relevant territory authority must not do any of the following without the Treasurer's prior written approval:
(a) subscribe for, or purchase, shares in or debentures or other securities of, a corporation;
(b) form, or take part in the formation of, a corporation.
(2) An approval under subsection (1)—
(a) must relate only to a particular corporation or proposed corporation; and
(b) may be given subject to the conditions or restrictions stated in the approval.
(3) If a relevant territory authority does something mentioned in subsection (1), the authority must tell the responsible Minister within 2 weeks after the day the authority does the thing.
(4) The responsible Minister must—
(a) prepare a written statement setting out details of, and reasons for, the relevant territory authority's action; and
(b) present the statement to the Legislative Assembly within 6 sitting days after the day the Minister is told about the action.
(5) A statement need not include any material that is commercially sensitive.
(6) However, if commercially sensitive information is not included in the statement, the responsible Minister must, when presenting the statement to the Legislative Assembly, also present a further statement setting out the general nature of the information and the reason for its non-inclusion in the statement.
99 Limitations on authorities taking part in joint ventures and trusts
(1) A relevant territory authority must not take part in a joint venture or trust without the Treasurer's prior written approval.
(2) An approval under subsection (1)—
(a) may apply generally or may relate to a particular proposed joint venture or trust; and
(b) may be given subject to the conditions or restrictions stated in the approval.
(3) If a relevant territory authority enters into an agreement for a joint venture or trust, the authority must tell the responsible Minister within 2 weeks after the day the authority enters into the agreement.
(4) The responsible Minister must—
(a) prepare a written statement setting out details of, and reasons for, the agreement; and
(b) present the statement to the Legislative Assembly within 6 sitting days after the day the Minister is told about the agreement.
(5) A statement need not include any material that is commercially sensitive.
(6) However, if commercially sensitive information is not included in the statement, the responsible Minister must, when presenting the statement to the Legislative Assembly, also present a further statement setting out the general nature of the information and the reason for its non-inclusion in the statement.
100 Corporations, joint ventures and trusts in which authority has interest
(1) If a relevant territory authority has a controlling interest in a corporation, joint venture or trust, the authority must ensure that—
(a) the auditor-general is appointed auditor for the corporation, joint venture or trust; and
(b) the corporation or joint venture, or a trustee for the trust, does not do anything that the authority itself could not do.
(2) If a relevant territory authority has an interest, other than a controlling interest, in a corporation, joint venture or trust, the authority must try to ensure that the auditor-general is appointed auditor for the corporation, joint venture or trust.
Note The Auditor-General Act 1996 , s 14 allows the auditor-general to require a person to give to the auditor-general information and documents.
(3) In this section—
"controlling interest"—see the Auditor-General Act 1996 , section 5.
101 Obligation of authorities to tell Minister about significant events
(1) A relevant territory authority must, as soon as practicable, tell the responsible Minister of any significant event that affects, or seems likely to affect—
(a) the value of the authority; or
(b) a significant part of the authority's assets; or
(c) the performance of the authority as a whole; or
(d) the carrying out of a significant activity of the authority.
(2) For this section, an event, part of assets or activity is "significant" for a relevant territory authority if—
(a) it is significant when interpreted in accordance with accounting standards relating to materiality ordinarily used in Australia when the decision about whether it is significant is made; or
(b) a document published by the authority identifies it as significant (however described); or
(c) a memorandum of understanding or other agreement between the responsible Minister or Treasurer and the authority identifies it as significant (however described); or
(d) it is prescribed under the financial management guidelines.
102 Ministerial directions to authorities about financial etc statements
(1) The responsible Minister for a relevant territory authority may, in writing, direct the relevant person for the authority to give the Minister financial or other statements relating to the authority.
(2) Without limiting subsection (1), the direction may state the form in which the statements are to be given and the period to which they must relate.
(3) A relevant person for a relevant territory authority who receives a direction under subsection (1) must prepare the statements required by the direction and give them to the responsible Minister within 1 month after the day the person receives the direction or, if a longer period is allowed by the Minister, within the longer period.
(4) The responsible Minister must not allow a longer period under subsection (3) for complying with a direction unless satisfied that there are special circumstances that justify the longer period.
(5) In this section:
"relevant person", for a relevant territory authority, means—
(a) if the authority has a governing board—the chair of the governing board; or
(b) if the authority does not have a governing board—the chief executive officer.
103 Application of government policies to authorities
(1) The responsible Minister for a relevant territory authority may, after consulting the authority, tell the authority, in writing, the general government policies ( applicable governmental policies ) that are to apply to the authority.
(2) A relevant territory authority must ensure that the authority complies, as far as practicable, with the applicable governmental policies.
(3) For the Trade Practices Act 1974 (Cwlth), this Act authorises—
(a) the decision to apply applicable governmental policies to an authority; and
(b) the doing of, or the failure to do, anything by or in relation to the authority to comply with applicable governmental policies.
(4) A notice under subsection (1) is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.