South Australian Numbered Acts South Australian Numbered Acts14—Insertion of section 13A and Part 2 Division 4A and 4B
After section 13 insert:
13A—Reports and Budget
(1) The Executive
Board must, not later than 31 December in each year, prepare and submit to the
Minister an annual report on the operations of the Executive Board during the
financial year ending on the preceding 30 June (and must provide a copy of the
audited accounts for that financial year with the annual report).
(2) The Executive
Board must, not later than the prescribed day in each year, prepare and submit
to the Minister for approval a budget setting out estimates of the Executive
Board's proposed expenditure for the next financial year or for some other
period determined by the Minister.
(3) The Minister may,
if he or she is satisfied that the Executive Board has refused or failed to
perform or discharge a function or duty under this Act, by notice in writing,
direct the Executive Board to prepare a report on the matter.
(4) A report or budget
(as the case requires) under this section must—
(a) in
the case of an annual report under subsection (1) or a budget under
subsection (2)—contain the information required by the regulations;
and
(b) in
the case of a report required under subsection (3)—contain the
information, and be delivered to the Minister on or before the date, specified
in the notice; and
(c) in
any case—be in a form determined by the Minister.
(5) The Executive
Board must, at an annual general meeting of A n angu Pitjantjatjara
Yankunytjatjara—
(a) make
available to A n angu copies of the annual report for the financial year
ending on the preceding 30 June; and
(b) if
requested by any A n angu, provide an explanation of the annual report, or a
part of the annual report.
(6) The Minister must
determine to approve, or not approve, a budget within 28 days after receiving
the proposed budget, and may, in determining whether to approve the budget,
take into consideration any matter the Minister thinks fit.
Division 4A—Director of Administration and General Manager
13B—Director of Administration
(1) There will be a
Director of Administration for the lands.
(2) The Director of
Administration will be appointed by the Executive Board.
(3) A person
who—
(a) has
ever been convicted of an offence involving dishonesty; or
(b) has
ever been removed from any office for conduct involving dishonesty; or
(c) is,
or has ever been, disqualified from managing corporations under Chapter 2D
Part 2D.6 of the Corporations Act 2001 of the Commonwealth (or any other Act
related to the management of corporations),
must not be appointed as the Director of Administration.
(4) The Director of
Administration will be appointed on conditions (including conditions as to
remuneration) determined by the Executive Board with the approval of the
Minister and for a term specified in the instrument of appointment and, at the
expiration of a term of appointment, is eligible for reappointment.
(5) The Minister must
determine to approve, or not approve, the conditions of appointment within 28
days after receiving the conditions, and may, in determining whether to
approve the conditions, take into consideration any matter the Minister thinks
fit.
13C—Functions of Director of Administration
The functions of the Director of Administration are—
(a) to
oversee the implementation of resolutions of A n angu Pitjantjatjara
Yankunytjatjara and the Executive Board; and
(b) to
carry out any other functions assigned to the Director of
Administration—
(i)
in the instrument of appointment; or
(ii)
by the Minister after consultation with the Executive
Board.
13D—General Manager
(1) There will be a
General Manager for the lands.
(2) The General
Manager will be appointed by the Executive Board.
(3) A person
who—
(a) has
ever been convicted of an offence involving dishonesty; or
(b) has
ever been removed from any office for conduct involving dishonesty; or
(c) is,
or has ever been, disqualified from managing corporations under Chapter 2D
Part 2D.6 of the Corporations Act 2001 of the Commonwealth (or any other Act
related to the management of corporations),
must not be appointed as the General Manager.
(4) The General
Manager will be appointed on conditions (including conditions as to
remuneration) determined by the Executive Board with the approval of the
Minister and for a term specified in the instrument of appointment and, at the
expiration of a term of appointment, is eligible for reappointment.
(5) The Minister must
determine to approve, or not approve, the conditions of appointment within 28
days after receiving the conditions, and may, in determining whether to
approve the conditions, take into consideration any matter the Minister thinks
fit.
13E—Functions of General Manager
The functions of the General Manager are—
(a) to
implement the resolutions of the Executive Board in a timely and efficient
manner; and
(b) to
undertake responsibility for the day-to-day operations and affairs of A n angu
Pitjantjatjara Yankunytjatjara; and
(c) to
ensure that records required under this or another Act are properly kept and
maintained; and
(d) to
discharge any duties under this or any other Act relating to financial and
annual reports; and
(e) to
ensure that the assets and resources of A n angu Pitjantjatjara
Yankunytjatjara are properly managed and maintained; and
(f) to
exercise, perform or discharge any other powers, functions or duties conferred
on the General Manager by or under this or any other Act.
13F—Director of Administration and General Manager subject to direction
If an Administrator is appointed in accordance with section 13O, the
Director of Administration and the General Manager are subject to the
direction and control of the Administrator.
13G—Termination of appointment of Director of Administration or General
Manager by Executive Board
(1) The Executive
Board may terminate the appointment of the Director of Administration or the
General Manager if the Director of Administration or the General Manager (as
the case requires)—
(a)
becomes physically or mentally incapable of carrying out official duties
satisfactorily; or
(b)
fails, without reasonable excuse, to carry out official duties to the
performance standards specified in the instrument of appointment; or
(c)
fails to comply with a duty imposed under section 12F, 13H, 13I or13J; or
(d)
engages in serious misconduct; or
(e) in
the case of the General Manager—
(i)
is convicted of an indictable offence; or
(ii)
becomes bankrupt or applies to take the benefit of a law
for the relief of insolvent debtors.
(2) The appointment of
the Director of Administration or the General Manager may only be terminated
by resolution passed by at least a two-thirds majority of the members of the
Executive Board.
(3) The office of
Director of Administration or the General Manager becomes vacant if the
Director of Administration or General Manager (as the case requires)—
(a)
dies; or
(b)
completes a term of office and is not reappointed; or
(c)
resigns by notice in writing addressed to the Executive Board; or
(d) is
sentenced to imprisonment for an offence; or
(e) is
disqualified from managing corporations under Chapter 2D Part 2D.6 of the
Corporations Act 2001 of the Commonwealth; or
(f) is
removed from the office by the Executive Board under subsection (1).
(4) The Minister may
direct the Executive Board to terminate the appointment of the Director of
Administration or the General Manager if he or she—
(a) in
the case of the General Manager—is convicted of an indictable offence;
or
(b) in
any case—has failed to comply with a duty imposed under section 12F,
13H, 13I or13J.
(5)
Subsections (1)(e)(i), (3)(d) and (4)(a) do not apply until the period
for appealing against the conviction has expired or, if an appeal is lodged
within that period, until the appeal is finalised.
(6) If the Director of
Administration or General Manager is temporarily absent, or temporarily unable
to discharge his or her official duties, the Executive Board may appoint a
person in accordance with this section to act in the position of Director of
Administration or General Manager (as the case requires) during the period
during which Director of Administration or General Manager (as the case
requires) is absent or unable to discharge his or her official duties.
(7) If a casual
vacancy occurs in the office of Director of Administration or General Manager,
the Executive Board must, as soon as practicable after the vacancy occurs,
appoint a person in accordance with this section to fill the vacancy.
13H—Duty to exercise care and diligence
(1) The Director of
Administration and General Manager must at all times exercise a reasonable
degree of care and diligence in the performance of his or her functions.
(2) The Director of
Administration or General Manager does not commit any breach of duty under
this section by acting in accordance with a lawful resolution of A n angu
Pitjantjatjara Yankunytjatjara.
13I—Duty to act honestly
The Director of Administration and General Manager must at all times act
honestly in the performance of the functions of his or her office, whether
within or outside the State.
13J—Duty with respect to conflict of interest
(1) If the Director of
Administration or General Manager has a direct or indirect personal or
pecuniary interest in a matter in relation to which he or she is required or
authorised to act in the course of official duties, he or she—
(a)
must, as soon as reasonably practicable, disclose to the Executive Board full
and accurate details of the interest; and
(b) must
not, unless the Executive Board otherwise determines, act in relation to the
matter.
(2) If the Director of
Administration or General Manager makes a disclosure of interest and complies
with the other requirements of subsection (1) in respect of a proposed
contract—
(a) the
contract is not liable to be avoided by the Executive Board; and
(b) the
Director of Administration or General Manager (as the case requires) is not
liable to account to the Executive Board for profits derived from the
contract.
(3) If the Director of
Administration or General Manager fails to make a disclosure of interest in
respect of a proposed contract, the contract is liable to be avoided by the
Executive Board.
(4) A contract may not
be avoided under subsection (3) if a person has acquired an interest in
property the subject of the contract in good faith for valuable consideration
and without notice of the contravention.
(5) If the Director of
Administration or General Manager has or acquires a personal or pecuniary
interest, or is or becomes the holder of an office, such that it is reasonably
foreseeable that a conflict might arise with his or her official duties, the
Director of Administration or General Manager (as the case requires) must, as
soon as reasonably practicable, disclose to the Executive Board full and
accurate details of the interest or office.
(6) A disclosure under
this section must be recorded in the minutes of the Executive Board and
reported to the Minister.
(7) If, in the opinion
of the Executive Board, a particular interest or office of the Director of
Administration or General Manager is of such significance that the holding of
the interest or office is not consistent with the proper discharge of the
official duties of the Director of Administration or General Manager (as the
case requires), the Executive Board may require the Director of Administration
or General Manager (as the case requires) either to divest himself or herself
of the interest or office or to resign from the office of Director of
Administration or General Manager (and non-compliance with the requirement
constitutes a failure to comply with a duty under this section and hence a
ground for termination of the appointment of the Director of Administration or
the General Manager).
(8) The Director of
Administration and the General Manager are exempt from this section in respect
of an interest in a matter—
(a)
while he or she remains unaware that he or she has an interest in the matter,
but in any proceedings against the Director of Administration or the General
Manager the burden will lie on Director of Administration or the General
Manager (as the case requires) to prove that he or she was not, at the
material time, aware of his or her interest; or
(b) that
is shared in common with A n angu generally, or a substantial section of A n
angu.
13K—Civil liability for contravention of section 13I or 13J
If the Director of Administration or the General Manager, or a former Director
of Administration or General Manager, fails to comply with a duty under
section 13I or 13J, A n angu Pitjantjatjara Yankunytjatjara may recover
from the person by action in a court of competent jurisdiction—
(a) if
the person or any other person made a profit as a result of the
failure—an amount equal to the profit; and
(b) if A
n angu Pitjantjatjara Yankunytjatjara suffered loss or damage as a result of
the failure—compensation for the loss or damage.
13L—Appointment etc by General Manager
(1) Subject to this
Act, the General Manager is responsible for appointing, managing, suspending
and dismissing the employees of A n angu Pitjantjatjara Yankunytjatjara on
behalf of A n angu Pitjantjatjara Yankunytjatjara.
(2) The General
Manager may only appoint an employee of A n angu Pitjantjatjara
Yankunytjatjara—
(a) if
the appointment is consistent with the approved budget for the financial year
in which the appointment is to be made; or
(b) with
the approval of the Executive Board and the Minister.
(3) Subject to this
Act, the remuneration and other conditions of service of an employee of A n
angu Pitjantjatjara Yankunytjatjara will be as determined by the General
Manager.
(4) The General
Manager must, in the exercise of powers under this section, comply with any
relevant Act, award or industrial agreement.
(5) Suspension of an
employee by the General Manager does not affect a right to remuneration in
respect of the period of suspension.
(6) The Minister must
determine to approve, or not approve, a proposed appointment under
subsection (2)(b) within 28 days after receiving the proposal, and may,
in determining whether to approve the appointment, take into consideration any
matter the Minister thinks fit.
13M—Director of Administration, General Manager and employees of A n
angu Pitjantjatjara Yankunytjatjara not subject to direction by member of
Executive Board
The Director of Administration, the General Manager and any employees of A n
angu Pitjantjatjara Yankunytjatjara are not subject to direction by an
individual member of the Executive Board unless the member of the Executive
Board is acting in accordance with a resolution of the Executive Board.
Division 4B—Limited intervention by Minister
13N—Minister may direct Executive Board
(1) If the Minister is
satisfied that—
(a) the
Executive Board has refused or failed to exercise, perform or discharge a
power, function or duty under the Act or the constitution; and
(b) the
refusal or failure has resulted in, or will result in, a detriment to A n angu
generally, or to a substantial section of A n angu,
the Minister may direct the Executive Board to take such action as the
Minister requires to correct or prevent such detriment.
(2) If the
requirements of a direction under subsection (1) are not complied with,
the Minister may take any action required by the direction.
(3) Action taken by
the Minister may be taken on the Minister's behalf by a member of the
Minister's department, or another person authorised by the Minister for the
purpose.
(4) A person must not
hinder or obstruct the Minister or another person taking action under
subsection (2).
Maximum penalty: $5 000.
(5) The reasonable
costs and expenses incurred by the Minister in taking action under this
section may be recovered by the Minister as a debt from the Executive Board.
(6) A n angu
Pitjantjatjara Yankunytjatjara cannot claim compensation from the Minister or
the Crown (or from any person acting under subsection (2)) in respect of
any action taken under this section.
13O—Minister may suspend Executive Board
(1) If the Executive
Board refuses or fails to comply with a direction of the Minister under
section 9D(4), 13A(3), 13G(4) or 13N, or not less than 4 members of the
Executive Board refuse or fail to attend a meeting called by the Minister
under section 11, the Minister may, by notice in the Gazette, suspend the
Executive Board for a period specified in the notice or until further notice
in the Gazette.
(2) Despite any other
provision of this Act, if the Executive Board is suspended the following
provisions apply:
(a) the
Minister may, by notice in the Gazette, appoint an Administrator, on terms and
conditions determined by the Minister, to administer the affairs of A n angu
Pitjantjatjara Yankunytjatjara in the name of, and on behalf of, A n angu
Pitjantjatjara Yankunytjatjara during the period of the suspension;
(b) the
Administrator is entitled to remuneration, allowances and expenses determined
by the Minister;
(c) the
Minister may remove a person from the office of Administrator for any reason
the Minister thinks fit;
(d) the
office of Administrator becomes vacant if the Administrator—
(i)
dies; or
(ii)
completes a term of office; or
(iii)
resigns by written notice to the Minister; or
(iv)
is removed from office under paragraph (c);
(e) the
Minister may appoint a person to act as the Administrator—
(i)
during a vacancy in the office of Administrator; or
(ii)
when the Administrator is absent from, or unable to
discharge, official duties;
(f) the
Administrator has all the functions and powers of A n angu Pitjantjatjara
Yankunytjatjara;
(g) in
carrying out a function or exercising a power of A n angu Pitjantjatjara
Yankunytjatjara, the Administrator is not bound by a resolution under section
9B(4) that is, in the opinion of the Administrator, inconsistent with the
appointment of the Administrator (but, to avoid doubt, is otherwise bound by a
resolution under that section);
(h) Part
2 Division 5 of the Public Sector Management Act 1995 applies to the
Administrator as if the Administrator were a senior official and the Minister
administering this Act were the relevant Minister;
(i)
any liability incurred by the Administrator in the course
of the administration will be paid or satisfied out of the funds of A n angu
Pitjantjatjara Yankunytjatjara;
(j) in
any legal proceedings, an apparently genuine document purporting to bear the
common seal of A n angu Pitjantjatjara Yankunytjatjara and the signature of
the Administrator attesting the affixation of the seal will be presumed, in
the absence of proof to the contrary, to have been duly executed by A n angu
Pitjantjatjara Yankunytjatjara;
(k) the
Administrator must cause proper accounts to be kept of the financial affairs
of A n angu Pitjantjatjara Yankunytjatjara and must cause the accounts of A n
angu Pitjantjatjara Yankunytjatjara for each financial year to be audited by a
registered company auditor;
(l) to
avoid doubt—
(i)
the Administrator must, in the course of the
administration, endeavour to advance the interests of A n angu at all times;
(ii)
the Administrator must comply with section 4(2) and
section 7 and any other provision of this Act that requires consultation with,
or a resolution of, A n angu Pitjantjatjara Yankunytjatjara.
13P—Use of facilities
An Administrator may, by arrangement with the relevant body, make use of the
services of the staff, equipment or facilities of—
(a) an
administrative unit in the Public Service; or
(b) a
public authority.
13Q—Offences
A person who—
(a)
hinders or obstructs an Administrator, or a person assisting an Administrator,
in the exercise of powers or functions under this Act; or
(b)
falsely represents, by words or conduct, that he or she is assisting an
Administrator in the exercise of powers or functions under this Act,
is guilty of an offence.
Maximum penalty: $5 000.