New South Wales Consolidated Acts New South Wales Consolidated ActsIntroductory note--: This Schedule provides for the creation, governance, administration and dissolution of statutory land managers.
In this Schedule--
"board" , in relation to a particular statutory land manager, means the board
of the statutory land manager.
"board member" , in relation to a particular board, means any member of the
board.
"Chairperson" , in relation to a particular board, means the Chairperson of
the board.
"Deputy Chairperson" , in relation to a particular board, means the Deputy
Chairperson of the board.
(1) The Minister may, by notice published in the Gazette, declare that a statutory land manager is to be constituted by this Act and specify its name.
(2) A corporation with the corporate name specified in the notice is constituted by this Act on the day that the notice takes effect.Note--: See section 50 (Statutory corporations) of the Interpretation Act 1987 concerning the powers of statutory corporations in the exercise of their functions, including the power to sue or be sued in their corporate name. The section also provides for the perpetual succession of statutory corporations.
(3) A statutory land manager is not a NSW Government agency.Note--: A body that is not a NSW Government agency does not have the status, privileges and immunities of the Crown. See section 13A of the Interpretation Act 1987 .
(4) A statutory land manager has the functions that are conferred or imposed on it by or under this Act or another Act.
(1) The Minister may, by notice published in the Gazette, change the name of a statutory land manager.
(2) The name of the statutory land manager is changed to its new name on the day that the notice takes effect.
(3) To avoid doubt, section 53 (1) of the Interpretation Act 1987 applies to a change of a statutory land manager's name under this clause in the same way as it applies to an alteration to its name.Note--: Section 53 (1) of the Interpretation Act 1987 provides that if a statutory body's name is altered--(a) the body continues in existence under its new name so that its identity is not affected, and(b) a reference in any Act or instrument, or in any other document, to the body under its former name is, except in relation to matters that occurred before the alteration took place, to be read as a reference to the body under its new name.
(1) The Minister may, by notice published in the Gazette, appoint board members for a statutory land manager that has a board.
(2) A board for a statutory land manager is to consist of no more than 7 members.Note--: Board members can include persons appointed by reference to the offices they hold (that is, ex officio members). See section 49 of the Interpretation Act 1987 .
(3) The regulations may make provision for or with respect to the qualifications for appointment as board members.
(4) Part 4 of this Schedule makes further provision with respect to statutory land managers with boards.
(1) The affairs of a statutory land manager are to be controlled by--(a) if the statutory land manager has a board--the board, or(b) if another Act provides for a specified person or body to control its affairs--the person or body specified, or(c) if paragraph (a) or (b) does not apply--the Minister.
(2) Any act, matter or thing done in the name of, or on behalf of, a statutory land manager by a board, person, body or the Minister that controls its affairs, or with the authority of that board, person, body or the Minister, is taken to have been done by the statutory land manager.
(3) A statutory land manager whose affairs are not controlled by the Minister is not subject to the control and direction of the Minister (except to the extent specifically provided for in this or any other Act).Note--: For example, the Minister may be able to require statutory land managers to do certain things under Part 3 (Management of Crown land) of this Act in connection with the exercise of their functions as the Crown land manager of particular Crown land.
This Part applies to statutory land managers with boards.
(1) The board is to have a Chairperson and a Deputy Chairperson, who must each be board members.
(2) The Minister is to appoint the Chairperson whenever there is a vacancy if the statutory land manager is a category 1 non-council manager.
(3) The board is to elect its Chairperson whenever there is a vacancy if the statutory land manager is not a category 1 non-council manager.
(4) The board is to elect its Deputy Chairperson whenever there is a vacancy (regardless of whether the statutory land manager is, or is not, a category 1 non-council manager).
(5) If the Minister considers that a board required to elect its Chairperson or Deputy Chairperson will not or cannot do so, the Minister may instead appoint the Chairperson or Deputy Chairperson.
(6) A person vacates office as Chairperson or Deputy Chairperson if the person--(a) is removed from that office by the Minister under this clause, or(b) resigns that office by written instrument given to the Minister, or(c) ceases to be a board member of the board.
(7) The Minister may at any time remove a person from office as the Chairperson or Deputy Chairperson.
(8) In this clause--
"category 1 non-council manager" means a category 1 non-council manager under Division 3.5.
The regulations may make provision for or with respect to the employment, engagement or appointment of secretaries and treasurers for statutory land managers with boards (including when they may be removed or vacate office and their functions).
Subject to this Part and the regulations, a board member holds office for the period (not exceeding 5 years) that is specified in the member's instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
Board members hold office as part-time members.
A board member (except one who is a government sector employee) is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine in respect of the member.
(1) The Minister may, from time to time, appoint a person to act in the office of a board member during the absence of the member.
(2) While acting in the place of a board member, the acting member has and may exercise all the functions of the board member and is taken to be a board member.
(3) The Minister may remove an acting member from office at any time for any or no reason and without notice.
(4) For the purposes of this clause, a vacancy in the office of a board member is taken to be an absence of the member.
(1) The office of a board member becomes vacant if the member--(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by written instrument given to the Minister, or(d) is removed from office by the Minister under this clause, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.
(2) The Minister may remove a board member from office at any time for any or no reason and without notice.
(3) Without limiting subclause (2), a board member may be removed for a contravention of a provision of this Part that applies to the member.
(1) The Minister may, by written order, suspend a board member from office during the investigation and determination of any matter involving an allegation of incompetence, misconduct or breach of duty by the member if the Minister is satisfied that it is appropriate in the public interest to do so.
(2) A copy of an order under this clause must be served on the board member.
(3) While suspended from office under this clause, a board member--(a) is not entitled to exercise any functions of the office, and(b) is not entitled to any fee or remuneration to which he or she would otherwise be entitled as the holder of the office.
(4) The period of suspension under an order made under this clause commences on the date the order is served on the board member or the date specified in the order for the commencement of the period of suspension, whichever is the later.
(1) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a person in the person's capacity as a board member.
(2) If by or under any Act provision is made--(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or(b) prohibiting the person from engaging in employment outside the duties of that office,the provision does not operate to disqualify the person from holding that office and also the office of a board member or from accepting and retaining any remuneration payable (if entitled) to the person under this Act as a board member.
The procedure for the calling of meetings of the board and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the board.
The quorum for a meeting of the board is a majority of its board members for the time being.
(1) The Chairperson (or, in the absence of the Chairperson, the Deputy Chairperson, or in the absence of both the Chairperson and the Deputy Chairperson, a person elected by the board members of the board who are present at a meeting of the board) is to preside at a meeting of the board.
(2) The presiding board member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
A decision supported by a majority of the votes cast at a meeting of the board at which a quorum is present is the decision of the board.
(1) The board may, if it thinks fit, transact any of its business by the circulation of papers among all the board members of the board for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the board made at a meeting of the board.
(2) The board may, if it thinks fit, transact any of its business at a meeting at which board members (or some board members) participate by telephone or other electronic means, but only if any member who speaks on a matter before the meeting can be heard by the other members.
(3) For the purposes of--(a) the approval of a resolution under subclause (1), or(b) a meeting held in accordance with subclause (2),the Chairperson and each other board member have the same voting rights as they have at an ordinary meeting of the board.
(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the board.
(5) Papers may be circulated among the board members for the purposes of subclause (1) by electronic means.
The Minister may call the first meeting of the board in such manner as the Minister thinks fit.
(1) Care and diligence A board member must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if the person--(a) were a board member in the statutory land manager's circumstances, and(b) occupied the office held by, and had the same responsibilities as, the member.
(2) Business judgment rule A board member who makes a business judgment is taken to meet the requirements of subclause (1), and the member's equivalent duties at common law and in equity in respect of the judgment, if the member--(a) makes the judgment in good faith for a proper purpose, and(b) does not have a material personal interest in the subject-matter of the judgment, and(c) informs themselves about the subject-matter of the judgment to the extent that the member reasonably believes to be appropriate, and(d) rationally believes that the judgment is in the best interests of the statutory land manager.
(3) The member's belief that the judgment is in the best interests of the statutory land manager is a rational one unless the belief is one that no reasonable person in the member's position would hold.Note--: This subclause only operates in relation to duties under this clause and the equivalent duties at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence)--it does not operate in relation to duties under any other provision of this Act or under any other laws.
(4) In this clause--
"business judgment" means any decision to take or not take action in respect of a matter relevant to the business operations of the statutory land manager.
A board member must not improperly use the member's position to--
(a) gain an advantage for the member or someone else, or
(b) cause detriment to the statutory land manager.
A person who obtains information because the person is, or has been, a board member must not improperly use the information to--
(a) gain an advantage for that member or someone else, or
(b) cause detriment to the statutory land manager.
(1) A board may issue a code of conduct to be observed by its board members.
(2) Without limiting what may be included in the code, the code may relate to any conduct of a board member in carrying out the member's functions that is likely to bring the board into disrepute.
(3) In particular, the code may contain provisions for or with respect to the following conduct--(a) conduct that contravenes all or specified provisions of this Act or the regulations in all or specified circumstances,(b) improper or unethical conduct,(c) abuse of power and other misconduct,(d) action causing, comprising or involving any of the following--(i) intimidation, harassment or verbal abuse,(ii) discrimination, disadvantage or adverse treatment in relation to employment,(iii) prejudice in the provision of a service to the community,(e) conduct of a board member causing, comprising or involving any of the following--(i) directing or influencing, or attempting to direct or influence, a member of the staff of the statutory land manager in the exercise of the functions of the staff member,(ii) an act of disorder committed by the board member at a meeting of the board,(f) the disclosure by board members of interests (whether pecuniary or otherwise) that could conflict with the proper performance of a member's functions and avoidance of conflicts of interest,(g) the disclosure by board members of confidential documents and information.
(4) The code must not be inconsistent with any requirements concerning standards of conduct specified by the Crown land management rules.Note--: Section 3.15 (5) enables the Crown land management rules to include standards of conduct for Crown land managers, and any persons involved in decision-making by Crown land managers, in connection with the exercise of management functions over the Crown land they manage.
(5) A board member must not contravene the code.
(1) If--(a) a board member has a direct or indirect material personal interest in a matter being considered or about to be considered at a meeting of the board, and(b) the interest appears to raise a conflict with the proper performance of the member's duties in relation to the consideration of the matter,the member must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the board.
(2) A disclosure by a board member at a meeting of the board that the member--(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, or(c) has some other specified interest relating to a specified company or other body or to a specified person,is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under this clause.
(3) Particulars of any disclosure made under this clause must be recorded by the board in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person.
(4) After a board member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the board otherwise determines--(a) be present during any deliberation of the board with respect to the matter, or(b) take part in any decision of the board with respect to the matter.
(5) For the purposes of the making of a determination by the board under subclause (4), a board member who has a direct or indirect material personal interest in a matter to which the disclosure relates must not--(a) be present during any deliberation of the board for the purpose of making the determination, or(b) take part in the making by the board of the determination.
(6) A contravention of this clause does not invalidate any decision of the board.
(1) If it is disclosed to the board members of a board, or they have reason to believe, that a member of the board has or may have a direct or indirect material personal interest in a proposed contract with the statutory land manager--(a) the board must, by notice published in the Gazette and in a newspaper circulating throughout the State, invite tenders for the proposed contract, and(b) must not enter into the proposed contract unless satisfied that, in all the circumstances of the case, none of the tenders submitted is more advantageous than the proposed contract.
(2) The notice inviting tenders must--(a) set out the nature of the work or services to be performed or the goods to be supplied under the contract, and(b) invite persons willing to perform the work or services or supply the goods to submit tenders on or before a specified date (at least 21 days after publication of the notice) to the statutory land manager.
(3) This clause does not apply in the case of an emergency.
(4) A contravention of this clause does not invalidate any decision of the board.
(1) Clause 13 (3) enables the Minister to remove a board member from office for a contravention of this Division.
(2) Nothing in this Division (or a code issued under this Division) gives rise to, or can be taken into account in, any civil cause of action, and nothing in this Division affects rights or liabilities arising apart from this Division.
(1) The Minister may, by notice published in the Gazette, appoint a person to be the administrator of a specified statutory land manager.
(2) The administrator holds office for the period (if any) specified in the notice, unless vacated sooner.
(3) The Minister may extend the period of appointment in a further notice published in the Gazette.
An administrator of a statutory land manager is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine in respect of the administrator.
(1) The office of an administrator becomes vacant if--(a) the administrator completes the administrator's period of office and is not reappointed, or(b) the administrator resigns the office by a written instrument given to the Minister, or(c) the administrator dies or ceases to exist, or(d) the administrator is removed from office by the Minister under this clause, or(e) a board is appointed for the statutory land manager.
(2) The Minister may, by written instrument given to an administrator, remove the administrator from office at any time and for any or no reason.
(1) If an administrator is appointed for a statutory land manager with a board--(a) each member (if any) of the board ceases to hold office as a member when the appointment takes effect, and(b) the affairs of the statutory land manager are to be controlled by the administrator instead of a board.
(2) If an administrator is appointed for a statutory land manager without a board, the affairs of the statutory land manager are to be controlled by the administrator instead of the person or body who is normally responsible for controlling its affairs.
(3) Any act, matter or thing done in the name of, or on behalf of, a statutory land manager by its administrator, or with the authority of the administrator, is taken to have been done by the statutory land manager.
This Part does not prevent the appointment of a board (whether with the same or different persons as a previous board) of a statutory land manager before it ceases to be under administration.
Note--: The appointment of a board results in the administrator vacating office. See clause 31.
(1) The Minister may, by notice published in the Gazette, dissolve a statutory land manager (except a statutory land manager whose affairs are managed by a person or body specified by another Act).
(2) The notice must specify one or more persons to whom the assets, rights and liabilities of the dissolved statutory land manager are to be transferred on its dissolution.
(3) A person specified for the purposes of subclause (2) must be--(a) a public authority, or(b) another Crown land manager (whether or not a statutory land manager).
(4) Schedule 6 applies to a transfer of any asset, right or liability to a person by a notice under this clause.
When a dissolution of a statutory land manager takes effect--
(a) if the statutory land manager has a board--each member of the board ceases to hold office as a member, and
(b) if the affairs of the statutory land manager are controlled by an administrator--the administrator ceases to hold office as the administrator.
A person who ceases to hold an office because of the operation of this Schedule (or because the person is removed from office under this Schedule) is not entitled to any remuneration or compensation because of the loss of that office.
Note--: Section 3.10 (2) provides that compensation is not payable if a person's appointment as a Crown land manager is revoked under that section.