2004
2004
2005-07-01
act
government
publicspecial
act.reprint
allinforce
2004-10-26
2004-10-26
0
2005-07-01
act-2005-064
2004
none
act-2004-115
ef5a31f1-9aa5-4576-91bc-ba9c7491dc4c
5e0c7a30-c1f0-41b1-a678-c416a2fd76b6
Note—
The Act was repealed by Sch 3 to the Statute Law (Miscellaneous Provisions) Act 2005
No 64 with effect from 1.7.2005.
An Act to amend certain Universities’ Acts
to enable the Universities to meet the requirements of the National Governance
Protocols for higher education providers of the Commonwealth; and for other
purposes.
1Name of
Act
This Act is the University
Legislation Amendment Act 2004.
2Commencement
This Act commences on the date of
assent.
3Amendment of
Acts
Each Act specified in Schedules 1–10 is
amended as set out in those Schedules.
4Repeal of Statute Law (Miscellaneous Provisions) Act (No 2)
1999 No 85
The Statute Law
(Miscellaneous Provisions) Act (No 2) 1999 is
repealed.
5Repeal of University Legislation
(Amendment) Act 1994 No 16
The University Legislation (Amendment) Act
1994 is repealed.
Schedule 1Amendment of Charles Sturt University Act 1989 No
76
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Sections 8A and
9
Omit section 9. Insert instead:
8AThe
Council
(1)
There is to be a Council of the
University.
(2)
The Council is the governing authority of the
University and has the functions conferred or imposed on it by or under this
Act or any other Act.
9Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Senate (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Senate (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister,
and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council,
and
(d)
2 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the general staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the general staff of
the University in the manner prescribed by the by-laws,
and
(f)
2 persons:
(i)
who are students of the University but who are
not members of the academic or general staff of the University,
and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by students of the University in
the manner prescribed by the by-laws, and
(g)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
graduates of the University in the manner prescribed by the by-laws or
appointed by the Council.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (g) that when added to the number of
other members to be appointed or elected to the Council would exceed
22.
(3)
A person appointed under subsection (1) (g) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Council must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or general staff
of the University or undergraduate or postgraduate students of the
University.
[3]Section 19 Functions of
Council
Insert after section 19 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 19A), and
(g)
to approve significant University commercial
activities (within the meaning of section 24A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 19,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 19A Controlled
entities
Omit “This section does not itself
confer” from section 19A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 19A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 19A
(5A)
Insert after section 19A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
24FDuties of Council
members
The members of the Council have the duties set
out in Schedule 3.
24GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 3.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 31
By-laws
Omit “(other than the parliamentary
members)” from section 31 (1) (b).
[10]Section 32
Rules
Omit “9 (6), 10 (2), 15 (1), 19 (1) (d) and
(e), 26 and 31 (1) (b) and (k) and clauses 1 (d)” from section 32
(1).
Insert instead “9 (1) (c)–(g) and
(8), 10 (2), 15 (1), 19 (1) (d) and (e), 26 and 31 (1) (b) and (k) and clauses
1 (1) (c) and (d)”.
[11]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e) or (f), for such term (not exceeding 2 years) as may be
prescribed by the by-laws,
(d)
in the case of a member referred to in section 9
(1) (g), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 24G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, or a member
appointed under section 9 (1) (g), ceases to be qualified for election or
appointment, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[12]Schedule 1, clause 3
(2)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[13]Schedule
3
Insert after Schedule 2:
Schedule 3Duties of Council
members
(Section 24F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 24G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[14]Schedule 4 Savings and
transitional provisions
Insert at the end of clause 1 (1):
University
Legislation Amendment Act 2004
[15]Schedule 4, Part
6
Insert after Part 5:
Part 6Provisions consequent on
enactment of University Legislation Amendment Act
2004
41Definitions
In this Part:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
42General
The provisions of this Part are subject to any
regulations made under clause 1.
43Constitution of
Council
(1)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(3) ceases to hold that office, and
(b)
a person holding office under former section 9
(5) (a) or (b) or (7) is taken to be appointed as a member under new section 9
(1) (b), (g) or (c), respectively, for the balance of the person’s term
of office, and
(c)
a person holding office under former section 9
(6) (a), (b) or (c) is taken to be elected as a member under new section 9 (1)
(d), (e) or (f), respectively, for the balance of the person’s term of
office.
(2)
On, or as soon as is reasonably practicable
after, the relevant day, the Minister must appoint the balance of the members
required to be appointed under new section 9 (1) (b).
(3)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(4)
For the purposes of making the by-laws referred
to in subclause (3), the Council must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(5)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(6)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (c), the Council is to appoint a person whom
the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (d) or (e), the Council is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (f), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (g), the Council is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(7)
Subject to this Act, a member appointed under
subclause (6) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(8)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (1) (b) or (c), or
(b)
in the case of a member appointed under subclause
(6), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(9)
For the purposes of subclause (1), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
10
A person who ceases to hold office under
subclause (1) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
44Maximum incumbency for Council
members
(1)
Consecutive years of office served by a member of
the Council immediately before the relevant day are to be taken into account
in applying clause 1 (3) of Schedule 1 in respect of the
member.
(2)
However, clause 1 (3) of Schedule 1 does not
affect the operation of clause 43 (1) (b) or (c) or (8) of this
Schedule.
45Application of section
24G
Section 24G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
46Continuation of
Council
No amendment made by the amending Act affects the
continuity of the Council.
Schedule 2Amendment of Macquarie University Act 1989 No
126
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Section
9
Omit the section. Insert instead:
9Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Senate (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Senate (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister,
and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council,
and
(d)
3 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is a student of the University but who is not
a member of the academic or non-academic staff of the University,
and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by students of the University in
the manner prescribed by the by-laws, and
(g)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
graduates of the University in the manner prescribed by the by-laws or
appointed by the Council.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (g) that when added to the number of
other members to be appointed or elected to the Council would exceed
22.
(3)
A person appointed under subsection (1) (g) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Council must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 16 Functions of
Council
Insert after section 16 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 16A), and
(g)
to approve significant University commercial
activities (within the meaning of section 21A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 16,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 16A Controlled
entities
Omit “This section does not itself
confer” from section 16A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 16A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 16A
(5A)
Insert after section 16A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
21FDuties of Council
members
The members of the Council have the duties set
out in Schedule 2A.
21GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 28
By-laws
Omit “(other than the parliamentary
members)” from section 28 (1) (b).
[10]Section 28 (1)
(y)
Omit “and” where secondly
occurring.
[11]Section 28 (1)
(aa)
Insert at the end of section 28 (1) (z):
, and
(aa)
the making, publication and inspection of
rules.
[12]Section
29
Omit the section. Insert instead:
29Rules
(1)
The by-laws may empower any authority (including
the Council) or officer of the University to make rules (not inconsistent with
this Act or the by-laws) for or with respect to any or all of the matters for
or with respect to which by-laws may be made, except the matters referred to
in sections 3 (2), 9 (1) (c)–(g) and (8), 10 (2), 14 (1), 16 (1) (d) and
(e), 23 and 28 (1) (b) and (k) and clauses 1 (1) (c) and (d) and 3 of Schedule
1.
(2)
A rule:
(a)
has the same force and effect as a by-law,
and
(b)
may, from time to time, be amended or repealed by
the Council (whether or not the Council is empowered to make such a rule), or
by the authority or officer of the University for the time being empowered to
make such a rule, and
(c)
takes effect on the day on which it is published
or on such later day as may be specified in the rule, and
(d)
must indicate the authority or officer who made
the rule and that it is made under this section.
(3)
In the event of an inconsistency between a by-law
and a rule, the by-law prevails to the extent of the
inconsistency.
(4)
The fact that a provision of this Act
specifically provides for a matter to be the subject of by-laws (without
mention of rules) does not prevent the matter from being the subject of rules
made in accordance with this section.
[13]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e) or (f), for such term (not exceeding 3 years) as may be
prescribed by the by-laws,
(d)
in the case of a member referred to in section 9
(1) (g), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 21G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, or a member
appointed under section 9 (1) (g), ceases to be qualified for election or
appointment, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[14]Schedule 1, clause 3
(2)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[15]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Council
members
(Section 21F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 21G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[16]Schedule 3 Savings and
transitional provisions
Insert before clause 1:
1ASavings or transitional
regulations
(1)
The Governor may make regulations containing
provisions of a savings or transitional nature consequent on the enactment of
the following Acts:
University
Legislation Amendment Act 2004
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
[17]Schedule 3, clause
12
Insert after clause 11:
12Provisions consequent on
enactment of University Legislation Amendment Act
2004
(1)
In this clause:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
(2)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(2) ceases to hold that office, and
(b)
a person holding office under former section 9
(4) or (6) is taken to be appointed as a member under new section 9 (1) (b) or
(c), respectively, for the balance of the person’s term of office,
and
(c)
a person holding office under former section 9
(5) (a), (b), (c) or (d) is taken to be elected as a member under new section
9 (1) (d), (e), (f) or (g), respectively, for the balance of the
person’s term of office.
(3)
On, or as soon as is reasonably practicable
after, the relevant day, the Minister must appoint the balance of the members
required to be appointed under new section 9 (1) (b).
(4)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(5)
For the purposes of making the by-laws referred
to in subclause (4), the Council must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(6)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(7)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (c), the Council is to appoint a person whom
the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (d) or (e), the Council is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (f), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (g), the Council is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(8)
Subject to this Act, a member appointed under
subclause (7) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(9)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (2) (b) or (c), or
(b)
in the case of a member appointed under subclause
(7), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(10)
A person who ceases to hold office under
subclause (2) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
(11)
For the purposes of subclause (2), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(12)
Consecutive years of office served by a member of
the Council immediately before the relevant day are to be taken into account
in applying clause 1 (3) of Schedule 1 in respect of the
member.
(13)
However, clause 1 (3) of Schedule 1 does not
affect the operation of subclause (2) (b) or (c) or (9) of this
Schedule.
(14)
Section 21G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
(15)
Any by-law in force immediately before the
relevant day is taken to have been validly made under this Act (as amended by
the amending Act) but only to the extent to which it could validly have been
made immediately after that day.
(16)
Any rule in force immediately before the relevant
day that could validly have been made immediately before that day is taken to
have been validly made under this Act as amended by the amending
Act.
(17)
On and after 1 September 2005, subclause (16)
does not validate any rule in force immediately before the relevant day that
could not have been validly made after the relevant day.
(18)
No amendment made by the amending Act affects the
continuity of the Council.
(19)
The provisions of this clause are subject to any
regulations made under clause 1A.
Schedule 3Amendment of Southern Cross University Act 1993 No
69
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Section
10
Omit the section. Insert instead:
10Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Board (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Board (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister
with, as far as practicable, at least one person appointed from each of the
following categories:
(i)
persons experienced in the field of education or
the arts,
(ii)
persons experienced in technology, industry,
commerce or industrial relations,
(iii)
persons who are practising, or have practised, a
profession,
(iv)
persons associated with the north coast region of
the State, and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council,
and
(d)
2 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is a student of the University but who is not
a member of the academic or non-academic staff of the University,
and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by students of the University in
the manner prescribed by the by-laws, and
(g)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
graduates of the University in the manner prescribed by the by-laws or
appointed by the Council.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (g) that when added to the number of
other members to be appointed or elected to the Council would exceed
22.
(3)
A person appointed under subsection (1) (g) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Council must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 16 Functions of
Council
Insert after section 16 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 16A), and
(g)
to approve significant University commercial
activities (within the meaning of section 21A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 16,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 16A Controlled
entities
Omit “This section does not itself
confer” from section 16A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 16A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 16A
(5A)
Insert after section 16A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
21FDuties of Council
members
The members of the Council have the duties set
out in Schedule 2A.
21GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 29
By-laws
Omit “(other than the parliamentary
members)” from section 29 (1) (b).
[10]Section 29 (1)
(aa)
Insert after section 29 (1) (z):
(aa)
the making, publication and inspection of
rules.
[11]Section
30
Omit the section. Insert instead:
30Rules
(1)
The by-laws may empower any authority (including
the Council) or officer of the University to make rules (not inconsistent with
this Act or the by-laws) for or with respect to any or all of the matters for
or with respect to which by-laws may be made, except the matters referred to
in sections 3 (2), 10 (1) (c)–(g) and (8), 11 (2), 16 (1) (d) and (e),
24 and 29 (1) (b) and (k) and clauses 1 (1) (c) and (d) and 3 of Schedule
1.
(2)
A rule:
(a)
has the same force and effect as a by-law,
and
(b)
may, from time to time, be amended or repealed by
the Council (whether or not the Council is empowered to make such a rule), or
by the authority or officer of the University for the time being empowered to
make such a rule, and
(c)
takes effect on the day on which it is published
or on such later day as may be specified in the rule, and
(d)
must indicate the authority or officer who made
the rule and that it is made under this section.
(3)
In the event of an inconsistency between a by-law
and a rule, the by-law prevails to the extent of the
inconsistency.
(4)
The fact that a provision of this Act
specifically provides for a matter to be the subject of by-laws (without
mention of rules) does not prevent the matter from being the subject of rules
made in accordance with this section.
[12]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section
10 (1) (b) or (c), for such term (not exceeding 4 years) as may be specified
in the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 10 (1) (d), (e) or (f), for such term (not exceeding 3 years) as may
be prescribed by the by-laws,
(d)
in the case of a member referred to in section 10
(1) (g), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 21G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, or a member
appointed under section 10 (1) (g), ceases to be qualified for election or
appointment, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[13]Schedule 1, clause 3
(2)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[14]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Council
members
(Section 21F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 21G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[15]Schedule 3 Savings and
transitional provisions
Omit “of this Act.” from clause 2
(1). Insert instead:
of this Act and the following Acts:
University
Legislation Amendment Act 2004
[16]Schedule 3, clause 2
(2)
Omit “to this Act”. Insert instead
“to the Act concerned”.
[17]Schedule 3, Part
8
Insert after Part 7:
Part 8Provisions consequent on
enactment of University Legislation Amendment Act
2004
32Definitions
In this Part:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 10 means section 10 as in force immediately before
its substitution by the amending Act.
new
section 10 means section 10 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
33General
The provisions of this Part are subject to any
regulations made under clause 2.
34Constitution of
Council
(1)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 10
(2) ceases to hold that office, and
(b)
a person holding office under former section 10
(4) (a) or (b) or (6) is taken to be appointed as a member under new section
10 (1) (g), (b) or (c), respectively, for the balance of the person’s
term of office, and
(c)
a person holding office under former section 10
(5) (a), (b) or (c) is taken to be elected as a member under new section 10
(1) (d), (e) or (f), respectively, for the balance of the person’s term
of office.
(2)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 10 as soon as is reasonably practicable
after the relevant day.
(3)
For the purposes of making the by-laws referred
to in subclause (2), the Council must be constituted so as to include all of
the members required to be appointed under new section 10 (1)
(b).
(4)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
10.
(5)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 10 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 10 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 10 (1) (c), the Council is to appoint a person
whom the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 10 (1) (d) or (e), the Council is to appoint a
person qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 10 (1) (f), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
appointed under new section 10 (1) (g), the Council is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(6)
Subject to this Act, a member appointed under
subclause (5) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(7)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (1) (b) or (c), or
(b)
in the case of a member appointed under subclause
(5), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 10
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(8)
For the purposes of subclause (1), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(9)
A person who ceases to hold office under
subclause (1) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
35Maximum incumbency for Council
members
(1)
Consecutive years of office served by a member of
the Council immediately before the relevant day are to be taken into account
in applying clause 1 (3) of Schedule 1 in respect of the
member.
(2)
However, clause 1 (3) of Schedule 1 does not
affect the operation of clause 34 (1) (b) or (c) or (7) of this
Schedule.
36Application of section
21G
Section 21G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
37Effect of amendments on
existing by-laws and rules
(1)
Any by-law in force immediately before the
relevant day is taken to have been validly made under this Act (as amended by
the amending Act) but only to the extent to which it could validly have been
made immediately after that day.
(2)
Any rule in force immediately before the relevant
day that could validly have been made immediately before that day is taken to
have been validly made under this Act as amended by the amending
Act.
(3)
On and after 1 September 2005, subclause (2) does
not validate any rule in force immediately before the relevant day that could
not have been validly made after the relevant day.
38Continuation of
Council
No amendment made by the amending Act affects the
continuity of the Council.
Schedule 4Amendment of University of New England Act 1993 No
68
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (4):
(5)
Notes included in this Act do not form part of
this Act.
[2]Section
9
Omit the section. Insert instead:
9Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Board (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Board (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister
following consultation by the Minister with such persons as the Minister
considers appropriate, with at least one person from each of the following
categories:
(i)
persons experienced in the field of
education,
(ii)
persons experienced in technology, industry,
business, human services or industrial relations,
(iii)
persons who are practising, or have practised, a
profession,
(iv)
persons having such other qualifications and
experience as the Minister thinks appropriate, and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council,
and
(d)
2 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is an undergraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by undergraduate students of the
University in the manner prescribed by the by-laws,
and
(g)
one person:
(i)
who is a postgraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by postgraduate students of the
University in the manner prescribed by the by-laws,
and
(h)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
graduates of the University in the manner prescribed by the by-laws or
appointed by the Council.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (h) that when added to the number of
other members to be appointed or elected to the Council would exceed
22.
(3)
A person appointed under subsection (1) (h) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Council must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 16 Functions of
Council
Insert after section 16 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 16A), and
(g)
to approve significant University commercial
activities (within the meaning of section 21A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 16,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 16A Controlled
entities
Omit “This section does not itself
confer” from section 16A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 16A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 16A
(5A)
Insert after section 16A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
21FDuties of Council
members
The members of the Council have the duties set
out in Schedule 2A.
21GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 28
By-laws
Omit “(other than the parliamentary
members)” from section 28 (1) (b).
[10]Section 29
Rules
Omit “9 (5), 10 (2), 14 (1), 16 (1) (d) and
(e), 23 and 28 (1) (b) and (k) and clauses 1 (d) and (e)” from section
29 (1).
Insert instead “9 (1) (c)–(h) and
(8), 10 (2), 14 (1), 16 (1) (d) and (e), 23 and 28 (1) (b) and (k) and clauses
1 (1) (c) and (d)”.
[11]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e), (f) or (g), for such term (not exceeding 3 years) as
may be prescribed by the by-laws,
(d)
in the case of a member referred to in section 9
(1) (h), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 21G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, or a member
appointed under section 9 (1) (h), ceases to be qualified for election or
appointment, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[12]Schedule 1, clause 3
(2)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[13]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Council
members
(Section 21F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 21G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[14]Schedule 3 Savings and
transitional provisions
Omit “of this Act.” from clause 2
(1). Insert instead:
of this Act and the following Acts:
University
Legislation Amendment Act 2004
[15]Schedule 3, clause 2
(2)
Omit “to this Act”. Insert instead
“to the Act concerned”.
[16]Schedule 3, Part
8
Insert after Part 7:
Part 8Provisions consequent on
enactment of University Legislation Amendment Act
2004
37Definitions
In this Part:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
38General
The provisions of this Part are subject to any
regulations made under clause 2.
39Constitution of
Council
(1)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(2) ceases to hold that office, and
(b)
a person holding office under former section 9
(4) or (6) is taken to be appointed as a member under new section 9 (1) (b) or
(c), respectively, for the balance of the person’s term of office,
and
(c)
a person holding office under former section 9
(5) (a), (b), (c), (d) or (e) is taken to be elected as a member under new
section 9 (1) (d), (e), (f), (g) or (h), respectively, for the balance of the
person’s term of office.
(2)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(3)
For the purposes of making the by-laws referred
to in subclause (2), the Council must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(4)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(5)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (c), the Council is to appoint a person whom
the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (d) or (e), the Council is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (f) or (g), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (h), the Council is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(6)
Subject to this Act, a member appointed under
subclause (5) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(7)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (1) (b) or (c), or
(b)
in the case of a member appointed under subclause
(5), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(8)
For the purposes of subclause (1), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(9)
A person who ceases to hold office under
subclause (1) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
40Maximum incumbency for Council
members
(1)
Consecutive years of office served by a member of
the Council immediately before the relevant day are to be taken into account
in applying clause 1 (3) of Schedule 1 in respect of the
member.
(2)
However, clause 1 (3) of Schedule 1 does not
affect the operation of clause 39 (1) (b) or (c) or (7) of this
Schedule.
41Application of section
21G
Section 21G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
42Continuation of
Council
No amendment made by the amending Act affects the
continuity of the Council.
Schedule 5Amendment of University of New South Wales Act 1989 No
125
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Section
9
Omit the section. Insert instead:
9Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of President of the Academic Board (if that person is not the Vice-Chancellor)
or of Deputy President of the Academic Board (if the President is the
Vice-Chancellor), and
(b)
6 external persons appointed by the Minister,
and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council, at least one of
whom is a graduate of the University, and
(d)
4 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is an undergraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by undergraduate students of the
University in the manner prescribed by the by-laws,
and
(g)
one person:
(i)
who is a postgraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by postgraduate students of the
University in the manner prescribed by the by-laws,
and
(h)
4 external persons:
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are elected by graduates of the University in
the manner prescribed by the by-laws.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) that when added to the number of other
members to be appointed or elected to the Council would exceed
22.
(3)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(4)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(5)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(6)
The majority of members of the Council must be
external persons.
(7)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(8)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(9)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 15 Functions of
Council
Insert after section 15 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 15A), and
(g)
to approve significant University commercial
activities (within the meaning of section 20A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 15,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 15A Controlled
entities
Omit “This section does not itself
confer” from section 15A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 15A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 15A
(5A)
Insert after section 15A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
20FDuties of Council
members
The members of the Council have the duties set
out in Schedule 2A.
20GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 27
By-laws
Omit “(other than the parliamentary
members)” from section 27 (1) (b).
[10]Section 28
Rules
Omit “9 (5), 10 (2), 15 (1) (d) and (e), 22
and 27 (1) (b) and (k) and clauses 1 (d) and (e)” from section 28
(1).
Insert instead “9 (1) (c)–(h) and
(7), 10 (2), 15 (1) (d) and (e), 22 and 27 (1) (b) and (k) and clauses 1 (1)
(c) and (d)”.
[11]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e), (f) or (g), for such term (not exceeding 2 years) as
may be prescribed by the by-laws,
(d)
in the case of an elected member referred to in
section 9 (1) (h), for such term (not exceeding 4 years) as may be prescribed
by the by-laws.
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 20G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, ceases to be
qualified for election, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[12]Schedule 1, clause 3
(2)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[13]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Council
members
(Section 20F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 20G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[14]Schedule 3 Savings and
transitional provisions
Insert before clause 1:
1ASavings or transitional
regulations
(1)
The Governor may make regulations containing
provisions of a savings or transitional nature consequent on the enactment of
the following Acts:
University
Legislation Amendment Act 2004
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
[15]Schedule 3, clause
12
Insert after clause 11:
12Provisions consequent on
enactment of University Legislation Amendment Act
2004
(1)
In this clause:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
(2)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(2) ceases to hold that office, and
(b)
a person holding office under former section 9
(4) or (6) is taken to be appointed as a member under new section 9 (1) (b) or
(c), respectively, for the balance of the person’s term of office,
and
(c)
a person holding office under former section 9
(5) (a), (b), (c), (d) or (e) is taken to be elected as a member under new
section 9 (1) (d), (e), (f), (g) or (h), respectively, for the balance of the
person’s term of office.
(3)
On, or as soon as is reasonably practicable
after, the relevant day, the Minister must appoint the balance of the members
required to be appointed under new section 9 (1) (b).
(4)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(5)
For the purposes of making the by-laws referred
to in subclause (4), the Council must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(6)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(7)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (c), the Council is to appoint a person whom
the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (d) or (e), the Council is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (f) or (g), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (h), the Council is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(8)
Subject to this Act, a member appointed under
subclause (7) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(9)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (2) (b) or (c), or
(b)
in the case of a member appointed under subclause
(7), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(10)
For the purposes of subclause (2), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(11)
A person who ceases to hold office under
subclause (2) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
(12)
Consecutive years of office served by a member
immediately before the relevant day are to be taken into account in applying
clause 1 (3) of Schedule 1 in respect of the member.
(13)
However, clause 1 (3) of Schedule 1 does not
affect the operation of subclause (2) (b) or (c) or (9) of this
Schedule.
(14)
Section 20G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
(15)
No amendment made by the amending Act affects the
continuity of the Council.
(16)
The provisions of this clause are subject to any
regulations made under clause 1A.
Schedule 6Amendment of University of Newcastle Act 1989 No
68
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Section
9
Omit the section. Insert instead:
9Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Senate (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Senate (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister
from, as far as practicable, the following categories:
(i)
persons experienced in the field of education or
the arts,
(ii)
persons experienced in technology, industry,
commerce or industrial relations,
(iii)
persons who are practising, or have practised, a
profession, and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council,
and
(d)
2 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is an undergraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by undergraduate students of the
University in the manner prescribed by the by-laws,
and
(g)
one person:
(i)
who is a postgraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by postgraduate students of the
University in the manner prescribed by the by-laws,
and
(h)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are members of Convocation,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
members of Convocation in the manner prescribed by the by-laws or appointed by
the Council.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (h) that when added to the number of
other members to be appointed or elected to the Council would exceed
22.
(3)
A person appointed under subsection (1) (h) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Council must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 16 Functions of
Council
Insert after section 16 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 16A), and
(g)
to approve significant University commercial
activities (within the meaning of section 21A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 16,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 16A Controlled
entities
Omit “This section does not itself
confer” from section 16A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 16A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 16A
(5A)
Insert after section 16A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
21FDuties of Council
members
The members of the Council have the duties set
out in Schedule 2A.
21GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 28
By-laws
Omit “(other than the parliamentary
members)” from section 28 (1) (b).
[10]Section 29
Rules
Omit “9 (5), 10 (2), 14 (1), 16 (1) (d) and
(e), 23 and 28 (1) (b) and (k) and clauses 1 (d) and (e)” from section
29 (1).
Insert instead “9 (1) (c)–(h) and
(8), 10 (2), 14 (1), 16 (1) (d) and (e), 23 and 28 (1) (b) and (k) and clauses
1 (1) (c) and (d)”.
[11]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e), (f) or (g), for such term (not exceeding 2 years) as
may be prescribed by the by-laws,
(d)
in the case of a member referred to in section 9
(1) (h), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 21G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, or a member
appointed under section 9 (1) (h), ceases to be qualified for election or
appointment, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[12]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Council
members
(Section 21F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 21G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[13]Schedule 3 Savings and
transitional provisions
Insert before the heading to Part 1:
Part 1AGeneral
1ASavings or transitional
regulations
(1)
The Governor may make regulations containing
provisions of a savings or transitional nature consequent on the enactment of
the following Acts:
University
Legislation Amendment Act 2004
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
[14]Schedule 3, Part
4
Insert after Part 3:
Part 4Provisions consequent on
enactment of University Legislation Amendment Act
2004
15Definitions
In this Part:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
16General
The provisions of this Part are subject to any
regulations made under clause 1A.
17Constitution of
Council
(1)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(2) ceases to hold that office, and
(b)
a person holding office under former section 9
(4) or (6) is taken to be appointed as a member under new section 9 (1) (b) or
(c), respectively, for the balance of the person’s term of office,
and
(c)
a person holding office under former section 9
(5) (a), (b), (c), (c1) or (d) is taken to be elected as a member under new
section 9 (1) (d), (e), (f), (g) or (h), respectively, for the balance of the
person’s term of office.
(2)
On, or as soon as is reasonably practicable
after, the relevant day, the Minister must appoint the balance of the members
required to be appointed under new section 9 (1) (b).
(3)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(4)
For the purposes of making the by-laws referred
to in subclause (3), the Council must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(5)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(6)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (c), the Council is to appoint a person whom
the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (d) or (e), the Council is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (f) or (g), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (h), the Council is to appoint a person
qualified to hold that office following consultation with
Convocation.
(7)
Subject to this Act, a member appointed under
subclause (6) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(8)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (1) (b) or (c), or
(b)
in the case of a member appointed under subclause
(6), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(9)
For the purposes of subclause (1), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(10)
A person who ceases to hold office under
subclause (1) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
18Maximum incumbency for Council
members
(1)
Consecutive years of office served by a member of
the Council immediately before the relevant day are to be taken into account
in applying clause 1 (3) of Schedule 1 in respect of the
member.
(2)
However, clause 1 (3) of Schedule 1 does not
affect the operation of clause 17 (1) (b) or (c) or (8) of this
Schedule.
19Application of section
21G
Section 21G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
20Continuation of
Council
No amendment made by the amending Act affects the
continuity of the Council.
Schedule 7Amendment of University of Sydney Act 1989 No
124
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Section
9
Omit the section. Insert instead:
9Constitution of
Senate
(1)
The Senate is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Senate), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Board (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Board (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister, one
of whom is nominated by the Senate for appointment otherwise than pursuant to
subsection (2), and
(c)
one external person appointed by the Senate,
and
(d)
4 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is an undergraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by undergraduate students of the
University in the manner prescribed by the by-laws,
and
(g)
one person:
(i)
who is a postgraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by postgraduate students of the
University in the manner prescribed by the by-laws,
and
(h)
5 external persons:
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are elected by graduates of the University in
the manner prescribed by the by-laws.
(2)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Senate for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(3)
Of the members of the Senate:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(4)
All appointed members of the Senate must have
expertise and experience relevant to the functions exercisable by the Senate
and an appreciation of the object, values, functions and activities of the
University.
(5)
The majority of members of the Senate must be
external persons.
(6)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Senate.
(7)
Schedule 1 has effect in relation to the members
and procedure of the Senate.
(8)
A reference in this section to members of the
academic staff of the University includes a reference to such persons as the
by-laws declare to be members of the academic staff of the University for the
purposes of this section.
(9)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 16 Functions of
Senate
Insert after section 16 (1A):
(1B)
Without limiting the functions of the Senate
under subsection (1A), the Senate is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 16A), and
(g)
to approve significant University commercial
activities (within the meaning of section 26A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for Fellows a program of
induction and of development relevant to their role as a
Fellow.
[4]Section 16,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Senate and requires the Senate to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 16A Controlled
entities
Omit “This section does not itself
confer” from section 16A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 16A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 16A
(5A)
Insert after section 16A (5):
(5A)
The Senate is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Senate or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Senate.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of
Fellows
26FDuties of
Fellows
The Fellows have the duties set out in Schedule
2A.
26GRemoval from office for breach
of duty
(1)
The Senate may remove a Fellow from office for
breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Senate of which notice (including notice of the motion that the
Fellow concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of Fellows for the time being.
(4)
The motion for removal must not be put to the
vote of the meeting unless the Fellow concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the Fellow to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A Fellow may not be removed from office by the
Senate for breach of duty except pursuant to this
section.
[9]Section 36
By-laws
Omit “(other than the parliamentary
members)” from section 36 (1) (b).
[10]Section 37
Rules
Omit “9 (5) and (9), 10 (2), 14 (1), 16 (1)
(d) and (e), 30 and 36 (1) (b) and (k) and clauses 1 (d) and (e)” from
section 37 (1).
Insert instead “9 (1) (d)–(h), (6)
and (8), 10 (2), 14 (1), 16 (1) (d) and (e), 30 and 36 (1) (b) and (k) and
clauses 1 (1) (c) and (d)”.
[11]Schedule 1 Provisions relating
to Fellows and to the procedure of the Senate
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a Fellow holds office as
follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e), (f) or (g), for such term (not exceeding 2 years) as
may be prescribed by the by-laws,
(d)
in the case of an elected member referred to in
section 9 (1) (h), for such term (not exceeding 4 years) as may be prescribed
by the by-laws.
(2)
The need to maintain an appropriate balance of
experienced and new members on the Senate must be taken into account:
(a)
by the Senate, when making the by-laws required
under this clause, and
(b)
by the Minister and the Senate, when appointing
members to the Senate.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Senate otherwise
resolves in relation to the person).
2Vacation of
office
The office of a Fellow becomes vacant if the
Fellow:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a Fellow appointed by the
Minister, to the Minister, or
(ii)
in the case of a Fellow appointed by the Senate,
to the Chancellor, or
(iii)
in the case of an elected Fellow, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Senate pursuant to
section 26G, or
(i)
is absent from 3 consecutive meetings of the
Senate of which reasonable notice has been given to the Fellow personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Senate for his or her absence,
or
(j)
in the case of an elected Fellow, ceases to be
qualified for election, or
(k)
in the case of a Fellow appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a Fellow appointed by the Senate,
is removed from office by the Senate.
[12]Schedule 1, clause 3
(2)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[13]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of
Fellows
(Section 26F)
1Duty to act in best interests
of University
A Fellow must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A Fellow must act honestly and exercise a
reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A Fellow must not make improper use of his or her
position:
(a)
to gain, directly or indirectly, an advantage for
the Fellow or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A Fellow must not make improper use of
information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the Fellow or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Fellows
(1)
If:
(a)
a Fellow has a material interest in a matter
being considered or about to be considered at a meeting of the Senate,
and
(b)
the interest appears to raise a conflict with the
proper performance of the Fellow’s duties in relation to the
consideration of the matter,
the Fellow must, as soon as possible after the relevant
facts have come to the Fellow’s knowledge, disclose the nature of the
interest at a meeting of the Senate.
(2)
A disclosure by a Fellow at a meeting of the
Senate that the Fellow:
(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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Senate in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Senate.
(4)
After a Fellow has disclosed the nature of an
interest in any matter, the Fellow must not, unless the Senate otherwise
determines:
(a)
be present during any deliberation of the Senate
with respect to the matter, or
(b)
take part in any decision of the Senate with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Senate under subclause (4), a Fellow who has a material interest in a
matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Senate
for the purpose of making the determination, or
(b)
take part in the making by the Senate of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Senate.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Senate pursuant to
section 26G.
(8)
This clause applies to a member of a committee of
the Senate and the committee in the same way as it applies to a member of the
Senate and the Senate.
(9)
For the purposes of this clause, a Fellow has a
material interest in a matter if a determination of the Senate in the matter
may result in a detriment being suffered by or a benefit accruing to the
Fellow or an associate of the Fellow.
(10)
In this clause:
associate of a Fellow means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
Fellow,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the Fellow,
(c)
any other person who is known to the Fellow for
reasons other than that person’s connection with the University or that
person’s public reputation.
[14]Schedule 3 Savings and
transitional provisions
Insert before clause 1:
1ASavings or transitional
regulations
(1)
The Governor may make regulations containing
provisions of a savings or transitional nature consequent on the enactment of
the following Acts:
University
Legislation Amendment Act 2004
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
[15]Schedule 3, clause
14
Insert after clause 13:
14Provisions consequent on
enactment of University Legislation Amendment Act
2004
(1)
In this clause:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
(2)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(2) ceases to hold that office, and
(b)
a person holding office under former section 9
(4) or (6) is taken to be appointed as a member under new section 9 (1) (b) or
(c), respectively, for the balance of the person’s term of office,
and
(c)
a person holding office under former section 9
(5) (a), (b), (c), (d) or (e) is taken to be elected as a member under new
section 9 (1) (d), (e), (f), (g) or (h), respectively, for the balance of the
person’s term of office.
(3)
On, or as soon as is reasonably practicable
after, the relevant day, the Minister must appoint the balance of the members
required to be appointed under new section 9 (1) (b).
(4)
The Senate is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Senate is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(5)
For the purposes of making the by-laws referred
to in subclause (4), the Senate must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(6)
The Senate is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(7)
A casual vacancy occurring in the office of a
Fellow before the Senate is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a Fellow
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a Fellow
appointed under new section 9 (1) (c), the Senate is to appoint a person whom
the Senate considers appropriate,
(c)
if the vacancy occurs in the office of a Fellow
elected under new section 9 (1) (d) or (e), the Senate is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a Fellow
elected under new section 9 (1) (f) or (g), the Senate is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Senate,
(e)
if the vacancy occurs in the office of a Fellow
elected under new section 9 (1) (h), the Senate is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(8)
Subject to this Act, a Fellow appointed under
subclause (7) holds office from the time that person is appointed under that
subclause until the expiry of the term of that Fellow’s
predecessor.
(9)
Subject to this Act, if, on the expiry:
(a)
of a Fellow’s term of office that is
continued under subclause (2) (b) or (c), or
(b)
in the case of a Fellow appointed under subclause
(7), of the term of office of the Fellow’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the Fellow may continue to hold that office until such
time as a person is so duly appointed or elected.
(10)
For the purposes of subclause (2), a Fellow
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the Fellow’s predecessor was elected or
appointed.
(11)
A person who ceases to hold office under
subclause (2) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a Fellow.
(12)
Consecutive years of office served by a Fellow
immediately before the relevant day are to be taken into account in applying
clause 1 (3) of Schedule 1 in respect of the Fellow.
(13)
However, clause 1 (3) of Schedule 1 does not
affect the operation of subclause (2) (b) or (c) or (9) of this
Schedule.
(14)
Section 26G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
(15)
No amendment made by the amending Act affects the
continuity of the Senate.
(16)
The provisions of this clause are subject to any
regulations made under clause 1A.
Schedule 8Amendment of University of Technology, Sydney, Act 1989 No
69
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Section
9
Omit the section. Insert instead:
9Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Board (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Board (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister
from, as far as practicable, the following categories:
(i)
persons experienced in the field of
education,
(ii)
persons experienced in technology, industry,
business, human services or industrial relations,
(iii)
persons who are practising, or have practised, a
profession,
(iv)
persons who, in the opinion of the Minister, are
likely to contribute to the cultural diversity of the
University,
(v)
persons having such other qualifications and
experience as the Minister thinks appropriate, and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council,
and
(d)
2 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is an undergraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by undergraduate students of the
University in the manner prescribed by the by-laws,
and
(g)
one person:
(i)
who is a postgraduate student of the University
but who is not a member of the academic or non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by postgraduate students of the
University in the manner prescribed by the by-laws,
and
(h)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are members of Convocation,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
members of Convocation in the manner prescribed by the by-laws or appointed by
the Council.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (h) that when added to the number of
other members to be appointed or elected to the Council would exceed
22.
(3)
A person appointed under subsection (1) (h) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Council must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 16 Functions of
Council
Insert after section 16 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 16A), and
(g)
to approve significant University commercial
activities (within the meaning of section 21A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 16,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 16A Controlled
entities
Omit “This section does not itself
confer” from section 16A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 16A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 16A
(5A)
Insert after section 16A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
21FDuties of Council
members
The members of the Council have the duties set
out in Schedule 2A.
21GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 28
By-laws
Omit “(other than the parliamentary
members)” from section 28 (1) (b).
[10]Section 29
Rules
Omit “9 (5), 10 (2), 14 (1), 16 (1) (d) and
(e), 23 and 28 (1) (b) and (k) and clauses 1 (d) and (e)” from section
29 (1).
Insert instead “9 (1) (c)–(h) and
(8), 10 (2), 14 (1), 16 (1) (d) and (e), 23 and 28 (1) (b) and (k) and clauses
1 (1) (c) and (d)”.
[11]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e), (f) or (g), for such term (not exceeding 2 years) as
may be prescribed by the by-laws,
(d)
in the case of a member referred to in section 9
(1) (h), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 21G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, or a member
appointed under section 9 (1) (h), ceases to be qualified for election or
appointment, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[12]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Council
members
(Section 21F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 21G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[13]Schedule 3 Savings and
transitional provisions
Insert before the heading to Part 1:
Part 1AGeneral
1ASavings or transitional
regulations
(1)
The Governor may make regulations containing
provisions of a savings or transitional nature consequent on the enactment of
the following Acts:
University
Legislation Amendment Act 2004
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
[14]Schedule 3, Part
4
Insert after Part 3:
Part 4Provisions consequent on
enactment of University Legislation Amendment Act
2004
15Definitions
In this Part:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
16General
The provisions of this Part are subject to any
regulations made under clause 1A.
17Constitution of
Council
(1)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(2) ceases to hold that office, and
(b)
a person holding office under former section 9
(4) or (6) is taken to be appointed as a member under new section 9 (1) (b) or
(c), respectively, for the balance of the person’s term of office,
and
(c)
a person holding office under former section 9
(5) (a), (b), (c), (c1) or (d) is taken to be elected as a member under new
section 9 (1) (d), (e), (f), (g) or (h), respectively, for the balance of the
person’s term of office.
(2)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(3)
For the purposes of making the by-laws referred
to in subclause (2), the Council must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(4)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(5)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (c), the Council is to appoint a person whom
the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (d) or (e), the Council is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (f) or (g), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (h), the Council is to appoint a person
qualified to hold that office following consultation with members of
Convocation whose names are entered in the Roll of
Convocation.
(6)
Subject to this Act, a member appointed under
subclause (5) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(7)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (1) (b) or (c), or
(b)
in the case of a member appointed under subclause
(5), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(8)
For the purposes of subclause (1), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(9)
A person who ceases to hold office under
subclause (1) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
18Maximum incumbency for Council
members
(1)
Consecutive years of office served by a member of
the Council immediately before the relevant day are to be taken into account
in applying clause 1 (3) of Schedule 1 in respect of the
member.
(2)
However, clause 1 (3) of Schedule 1 does not
affect the operation of clause 17 (1) (b) or (c) or (7) of this
Schedule.
19Application of section
21G
Section 21G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
20Continuation of
Council
No amendment made by the amending Act affects the
continuity of the Council.
Schedule 9Amendment of University of Western Sydney Act 1997 No
116
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (2):
(3)
Notes included in this Act do not form part of
this Act.
[2]Section
12
Omit the section. Insert instead:
12Constitution of
Board
(1)
The Board is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Board), and
(ii)
the Vice-Chancellor, and
(iii)
the Chair of the Academic Senate,
and
(b)
6 external persons appointed by the Minister who,
in the opinion of the Minister:
(i)
each have an interest in Greater Western Sydney
and its development or an interest in the students or other clients of the
University, and
(ii)
bring to the Board suitable levels of knowledge,
skills and experience in matters such as strategic planning, human resources
or educational or financial matters, and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Board,
and
(d)
one person:
(i)
who is a member of the academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the general staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the general staff of
the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is an undergraduate student of the University
but who is not a member of the academic or general staff of the University,
and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by undergraduate students of the
University in the manner prescribed by the by-laws,
and
(g)
one person:
(i)
who is a postgraduate student of the University
but who is not a member of the academic or general staff of the University,
and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by postgraduate students of the
University in the manner prescribed by the by-laws,
and
(h)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
graduates of the University in the manner prescribed by the by-laws or
appointed by the Board.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (h) that when added to the number of
other members to be appointed or elected to the Board would exceed
22.
(3)
A person appointed under subsection (1) (h) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Board for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Board:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Board must have
expertise and experience relevant to the functions exercisable by the Board
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Board must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Board.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Board.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or general staff
of the University or undergraduate or postgraduate students of the
University.
(11)
For the purposes of this section, general
staff of the University excludes the academic staff of the
University.
[3]Section 14 Deputy
Chancellors
Omit “(whether or not members of the
Board)” from section 14 (1).
Insert instead “from the members of the
Board”.
[4]Section 14
(1)
Omit “(whether or not a member of the
Board)”.
Insert instead “from the members of the
Board”.
[5]Section 22 Functions of
Board
Insert after section 22 (1A):
(1B)
Without limiting the functions of the Board under
subsection (1A), the Board is, in controlling and managing the affairs and
concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 22A), and
(g)
to approve significant University commercial
activities (within the meaning of section 32A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Board a
program of induction and of development relevant to their role as such a
member.
[6]Section 22,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Board and requires the Board to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[7]Section 22A Controlled
entities
Omit “This section does not itself
confer” from section 22A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[8]Section 22A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[9]Section 22A
(5A)
Insert after section 22A (5):
(5A)
The Board is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Board or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Board.
[10]Part 4A
Insert after Part 4:
Part 4ADuties of Board
members
32FDuties of Board
members
The members of the Board have the duties set out
in Schedule 2A.
32GRemoval from office for breach
of duty
(1)
The Board may remove a member of the Board from
office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Board of which notice (including notice of the motion that the
member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the Board.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Board may not be removed from
office by the Board for breach of duty except pursuant to this
section.
[11]Section 38 Limited tenure in
certain positions
Omit “the Minister may, by order, grant a
person an exemption from this section,” from section 38
(3).
Insert instead “a person may be exempted
from this section by resolution of the Board”.
[12]Section 38 (6) (d) and
(e)
Omit the paragraphs. Insert instead:
(d)
in the case of an elected member of the Board
referred to in section 12 (1) (d), (e), (f) or (g)—2
years,
(e)
in the case of an elected member of the Board
referred to in section 12 (1) (h)—4
years.
[13]Section 40
By-laws
Omit “(other than the parliamentary
members)” from section 40 (1) (b).
[14]Section 41
Rules
Omit “12 (5), 13 (2), 14 (2), 22 (1) (e)
and (f) and 40 (1) (b) and clauses 1 (d) and (e)” from section 41
(1).
Insert instead “12 (1) (c)–(h) and
(8), 13 (2), 14 (2), 22 (1) (e) and (f) and 40 (1) (b) and clauses 1 (1) (c)
and (d)”.
[15]Schedule 1 Provisions relating
to members and procedure of Board
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Board holds
office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section
12 (1) (b) or (c), for such term (not exceeding 4 years) as may be specified
in the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 12 (1) (d), (e), (f) or (g), for such term (not exceeding 2 years) as
may be prescribed by the by-laws,
(d)
in the case of a member referred to in section 12
(1) (h), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Board must be taken into account:
(a)
by the Board, when making the by-laws required
under this clause, and
(b)
by the Minister and the Board, when appointing
members to the Board.
2Vacation of
office
The office of a member of the Board becomes
vacant if the member:
(a)
dies, or
(b)
in the case of an appointed or elected member,
transfers his or her place of permanent residence to a place that is not
within the State or the Australian Capital Territory, or
(c)
declines to act, or
(d)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Board,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, 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 any assignment of his or her estate 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, or
(h)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(i)
is removed from office by the Board pursuant to
section 32G, or
(j)
is absent from 3 consecutive meetings of the
Board of which reasonable notice has been given to the member personally or in
the ordinary course of post and is not, within 6 weeks after the last of those
meetings, excused by the Board for his or her absence, or
(k)
in the case of an elected member, or a member
appointed under section 12 (1) (h), ceases to be qualified for election or
appointment, or
(l)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(m)
in the case of a member appointed by the Board,
is removed from office by the Board.
[16]Schedule 1, clause 3
(2)
Omit the subclause.
[17]Schedule 1, clause 3
(3)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[18]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Board
members
(Section 32F)
1Duty to act in best interests
of University
A member of the Board must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Board must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Board must not make improper use
of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Board must not make improper use
of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Board members
(1)
If:
(a)
a member of the Board has a material 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 member of the Board 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 subclause (1).
(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 for inspection by any person on
payment of a reasonable fee determined by the Board.
(4)
After a member of the Board has disclosed the
nature of an interest in any matter, the member must not, unless 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 purpose of the making of a determination
by the Board under subclause (4), a member of the Board who has a material
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.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Board pursuant to
section 32G.
(8)
This clause applies to a member of a committee of
the Board and the committee in the same way as it applies to a member of the
Board and the Board.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Board in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[19]Schedule 4 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
University
Legislation Amendment Act 2004
[20]Schedule 4, Part
5
Insert after Part 4:
Part 5Provisions consequent on
enactment of University Legislation Amendment Act
2004
26Definitions
In this Part:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 12 means section 12 as in force immediately before
its substitution by the amending Act.
new
section 12 means section 12 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
27General
The provisions of this Part are subject to any
regulations made under clause 1.
28Constitution of
Board
(1)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 12
(2) ceases to hold that office, and
(b)
a person holding office under former section 12
(3) (c) or (6) is taken to be appointed as a member under new section 12 (1)
(c), and
(c)
a person holding office under former section 12
(4) is taken to be appointed as a member under new section 12 (1) (b),
and
(d)
a person holding office under former section 12
(5) (a), (b), (c), (d) or (e) is taken to be elected as a member under new
section 12 (1) (d), (e), (f), (g) or (h), respectively, for the balance of the
person’s term of office.
(2)
On, or as soon as is reasonably practicable
after, the relevant day, the Minister must appoint the balance of the members
required to be appointed under new section 12 (1) (b).
(3)
The Board is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Board is duly
constituted under new section 12 as soon as is reasonably practicable after
the relevant day.
(4)
For the purposes of making the by-laws referred
to in subclause (3), the Board must be constituted so as to include all of the
members required to be appointed under new section 12 (1)
(b).
(5)
The Board is taken to be properly constituted
until such time as it is constituted in accordance with new section
12.
(6)
A casual vacancy occurring in the office of a
member before the Board is duly constituted under new section 12 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 12 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 12 (1) (c), the Board is to appoint a person whom
the Board considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 12 (1) (d) or (e), the Board is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 12 (1) (f) or (g), the Board is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Board,
(e)
if the vacancy occurs in the office of a member
elected under new section 12 (1) (h), the Board is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(7)
Subject to this Act, a member appointed under
subclause (6) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(8)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (1) (b), (c) or (d), or
(b)
in the case of a member appointed under subclause
(6), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 12
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(9)
For the purposes of subclause (1), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(10)
A person who ceases to hold office under
subclause (1) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
29Existing exemptions from
section 38
An exemption granted by the Minister under
section 38 (3) (as in force immediately before its amendment by the amending
Act) is taken to be an exemption by resolution of the Board under that
subsection as so amended.
30Application of section
32G
Section 32G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
31Continuation of
Board
No amendment made by the amending Act affects the
continuity of the Board.
Schedule 10Amendment of University of Wollongong Act 1989 No
127
(Section 3)
[1]Section 3
Definitions
Insert after section 3 (3):
(4)
Notes included in this Act do not form part of
this Act.
[2]Section
9
Omit the section. Insert instead:
9Constitution of
Council
(1)
The Council is to consist of:
(a)
3 official members, being:
(i)
the Chancellor (if the Chancellor is not
otherwise a member of the Council), and
(ii)
the Vice-Chancellor, and
(iii)
the person for the time being holding the office
of presiding member of the Academic Senate (if that person is not the
Vice-Chancellor) or of deputy presiding member of the Academic Senate (if the
presiding member is the Vice-Chancellor), and
(b)
6 external persons appointed by the Minister
from, as far as practicable, the following categories:
(i)
persons experienced in the field of education or
the arts,
(ii)
persons experienced in technology, industry,
commerce or industrial relations,
(iii)
persons who are practising, or have practised, a
profession,
(iv)
persons associated with Illawarra and the South
Coast, and
(c)
one or more external persons (being such number
as is prescribed by the by-laws) appointed by the Council,
and
(d)
2 persons:
(i)
who are members of the academic staff of the
University, and
(ii)
who have such qualifications as may be prescribed
by the by-laws, and
(iii)
who are elected by members of the academic staff
of the University in the manner prescribed by the by-laws,
and
(e)
one person:
(i)
who is a member of the non-academic staff of the
University, and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by members of the non-academic
staff of the University in the manner prescribed by the by-laws,
and
(f)
one person:
(i)
who is a student of the University but who is not
a member of the academic or non-academic staff of the University,
and
(ii)
who has such qualifications as may be prescribed
by the by-laws, and
(iii)
who is elected by students of the University in
the manner prescribed by the by-laws, and
(g)
one or more external persons (being such number
as is prescribed by the by-laws):
(i)
who are graduates of the University,
and
(ii)
who have such qualifications as are prescribed by
the by-laws, and
(iii)
who are (as prescribed by the by-laws) elected by
graduates of the University in the manner prescribed by the by-laws or
appointed by the Council.
(2)
The by-laws may not prescribe a number of members
for the purposes of subsection (1) (c) or (g) that when added to the number of
other members to be appointed or elected to the Council would exceed
22.
(3)
A person appointed under subsection (1) (g) is
appointed in addition to any member appointed under subsection (1)
(c).
(4)
The Minister may appoint a person who is a member
of the Parliament of New South Wales under subsection (1) (b) but only if the
person is nominated by the Council for appointment.
No more than 2 such persons may hold office at
any one time as appointed members under subsection (1)
(b).
(5)
Of the members of the Council:
(a)
at least 2 must have financial expertise (as
demonstrated by relevant qualifications and by experience in financial
management at a senior level in the public or private sector),
and
(b)
at least one must have commercial expertise (as
demonstrated by relevant experience at a senior level in the public or private
sector).
(6)
All appointed members of the Council must have
expertise and experience relevant to the functions exercisable by the Council
and an appreciation of the object, values, functions and activities of the
University.
(7)
The majority of members of the Council must be
external persons.
(8)
The by-laws are to prescribe the procedures for
the nomination of persons for appointment as members of the
Council.
(9)
Schedule 1 has effect in relation to the members
and procedure of the Council.
(10)
A reference in this section to external persons
is a reference to persons who are not members of the academic or non-academic
staff of the University or undergraduate or postgraduate students of the
University.
[3]Section 16 Functions of
Council
Insert after section 16 (1A):
(1B)
Without limiting the functions of the Council
under subsection (1A), the Council is, in controlling and managing the affairs
and concerns of the University:
(a)
to monitor the performance of the
Vice-Chancellor, and
(b)
to oversee the University’s performance,
and
(c)
to oversee the academic activities of the
University, and
(d)
to approve the University’s mission,
strategic direction, annual budget and business plan, and
(e)
to oversee risk management and risk assessment
across the University (including, if necessary, taking reasonable steps to
obtain independent audit reports of entities in which the University has an
interest but which it does not control or with which it has entered into a
joint venture), and
(f)
to approve and monitor systems of control and
accountability for the University (including in relation to controlled
entities within the meaning of section 16A), and
(g)
to approve significant University commercial
activities (within the meaning of section 21A), and
(h)
to establish policies and procedural principles
for the University consistent with legal requirements and community
expectations, and
(i)
to ensure that the University’s grievance
procedures, and information concerning any rights of appeal or review
conferred by or under any Act, are published in a form that is readily
accessible to the public, and
(j)
to regularly review its own performance (in light
of its functions and obligations imposed by or under this or any other Act),
and
(k)
to adopt a statement of its primary
responsibilities, and
(l)
to make available for members of the Council a
program of induction and of development relevant to their role as such a
member.
[4]Section 16,
note
Insert at the end of the section:
Note—
The Annual Reports
(Statutory Bodies) Act 1984 regulates the making of annual
reports to Parliament by the Council and requires the Council to report on the
University’s operations (including in relation to risk management and
insurance arrangements) and a range of financial and other
matters.
[5]Section 16A Controlled
entities
Omit “This section does not itself
confer” from section 16A (4).
Insert instead “Nothing in the preceding
subsections confers”.
[6]Section 16A
(5)
Omit “This section does not
affect”.
Insert instead “Nothing in the preceding
subsections affects”.
[7]Section 16A
(5A)
Insert after section 16A (5):
(5A)
The Council is, as far as is reasonably
practicable, to ensure:
(a)
that the governing bodies of controlled
entities:
(i)
possess the expertise and experience necessary to
provide proper stewardship and control, and
(ii)
comprise, where possible, at least some members
who are not members of the Council or members of staff, or students, of the
University, and
(iii)
adopt and evaluate their own governance
principles, and
(iv)
document, and keep updated, a corporate or
business strategy containing achievable and measurable performance targets,
and
(b)
that a protocol is established regarding
reporting by governing bodies of controlled entities to the
Council.
[8]Part 4A
Insert after Part 4:
Part 4ADuties of Council
members
21FDuties of Council
members
The members of the Council have the duties set
out in Schedule 2A.
21GRemoval from office for breach
of duty
(1)
The Council may remove a member of the Council
from office for breach of a duty set out in Schedule 2A.
(2)
The removal from office may be effected only at a
meeting of the Council of which notice (including notice of the motion that
the member concerned be removed from office for breach of duty) was duly
given.
(3)
The removal from office may be effected only if
the motion for removal is supported by at least a two-thirds majority of the
total number of members for the time being of the
Council.
(4)
The motion for removal must not be put to the
vote of the meeting unless the member concerned has been given a reasonable
opportunity to reply to the motion at the meeting, either orally or in
writing.
(5)
If the member to whom the motion for removal
refers does not attend the meeting, a reasonable opportunity to reply to the
motion is taken to have been given if notice of the meeting has been duly
given.
(6)
A member of the Council may not be removed from
office by the Council for breach of duty except pursuant to this
section.
[9]Section 28
By-laws
Omit “(other than the parliamentary
members)” from section 28 (1) (b).
[10]Section 29
Rules
Omit “9 (5), 10 (2), 14 (1), 16 (1) (d) and
(e), 23 and 28 (1) (b) and (k) and clauses 1 (d) and (e)” from section
29 (1).
Insert instead “9 (1) (c)–(g) and
(8), 10 (2), 14 (1), 16 (1) (d) and (e), 23 and 28 (1) (b) and (k) and clauses
1 (1) (c) and (d)”.
[11]Schedule 1 Provisions relating
to members and procedure of the Council
Omit clauses 1 and 2. Insert instead:
1Term of
office
(1)
Subject to this Act, a member of the Council
holds office as follows:
(a)
in the case of an official member, while the
member holds the office by virtue of which he or she is a
member,
(b)
in the case of a member appointed under section 9
(1) (b) or (c), for such term (not exceeding 4 years) as may be specified in
the member’s instrument of appointment,
(c)
in the case of an elected member referred to in
section 9 (1) (d), (e) or (f), for such term (not exceeding 3 years) as may be
prescribed by the by-laws,
(d)
in the case of a member referred to in section 9
(1) (g), for such term (not exceeding 4 years) as may be prescribed by the
by-laws (in the case of an elected member) or specified in the member’s
instrument of appointment (in the case of an appointed
member).
(2)
The need to maintain an appropriate balance of
experienced and new members on the Council must be taken into account:
(a)
by the Council, when making the by-laws required
under this clause, and
(b)
by the Minister and the Council, when appointing
members to the Council.
(3)
A person must not be appointed or elected to
serve more than 12 consecutive years of office (unless the Council otherwise
resolves in relation to the person).
2Vacation of
office
The office of a member of the Council becomes
vacant if the member:
(a)
dies, or
(b)
declines to act, or
(c)
resigns the office by writing under his or her
hand addressed:
(i)
in the case of a member appointed by the
Minister, to the Minister, or
(ii)
in the case of a member appointed by the Council,
to the Chancellor, or
(iii)
in the case of an elected member, to the
Vice-Chancellor, or
(d)
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 any assignment of his or her estate for their benefit,
or
(e)
becomes a mentally incapacitated person,
or
(f)
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, or
(g)
is, or becomes, disqualified from managing a
corporation under Part 2D.6 of the Corporations Act
2001 of the Commonwealth, or
(h)
is removed from office by the Council pursuant to
section 21G, or
(i)
is absent from 3 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post and is not, within 6 weeks after the last of
those meetings, excused by the Council for his or her absence,
or
(j)
in the case of an elected member, or a member
appointed under section 9 (1) (g), ceases to be qualified for election or
appointment, or
(k)
in the case of a member appointed by the
Minister, is removed from office by the Minister, or
(l)
in the case of a member appointed by the Council,
is removed from office by the Council.
[12]Schedule 1, clause 3
(2)
Omit “(otherwise than to fill the office of
a parliamentary member)”.
[13]Schedule
2A
Insert after Schedule 2:
Schedule 2ADuties of Council
members
(Section 21F)
1Duty to act in best interests
of University
A member of the Council must carry out his or her
functions:
(a)
in good faith in the best interests of the
University as a whole, and
(b)
for a proper purpose.
2Duty to exercise care and
diligence
A member of the Council must act honestly and
exercise a reasonable degree of care and diligence in carrying out his or her
functions.
3Duty not to improperly use
position
A member of the Council must not make improper
use of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
4Duty not to improperly use
information
A member of the Council must not make improper
use of information acquired because of his or her position:
(a)
to gain, directly or indirectly, an advantage for
the member or another person, or
(b)
to cause detriment to the
University.
5Disclosure of material
interests by Council members
(1)
If:
(a)
a member of the Council has a material interest
in a matter being considered or about to be considered at a meeting of the
Council, 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 Council.
(2)
A disclosure by a member of the Council at a
meeting of the Council 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 subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Council in a book kept for the purpose and that
book must be open at all reasonable hours for inspection by any person on
payment of a reasonable fee determined by the Council.
(4)
After a member of the Council has disclosed the
nature of an interest in any matter, the member must not, unless the Council
otherwise determines:
(a)
be present during any deliberation of the Council
with respect to the matter, or
(b)
take part in any decision of the Council with
respect to the matter.
(5)
For the purpose of the making of a determination
by the Council under subclause (4), a member of the Council who has a material
interest in a matter to which the disclosure relates must not:
(a)
be present during any deliberation of the Council
for the purpose of making the determination, or
(b)
take part in the making by the Council of the
determination.
(6)
A contravention of this clause does not
invalidate any decision of the Council.
(7)
This clause does not prevent a person from taking
part in the consideration or discussion of, or from voting on any question
relating to, the person’s removal from office by the Council pursuant to
section 21G.
(8)
This clause applies to a member of a committee of
the Council and the committee in the same way as it applies to a member of the
Council and the Council.
(9)
For the purposes of this clause, a member has a
material interest in a matter if a determination of the Council in the matter
may result in a detriment being suffered by or a benefit accruing to the
member or an associate of the member.
(10)
In this clause:
associate of a member means any of
the following:
(a)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of the
member,
(b)
the spouse, de facto partner, parent, child,
brother or sister, business partner or friend of a person referred to in
paragraph (a) if that relationship is known to the member,
(c)
any other person who is known to the member for
reasons other than that person’s connection with the University or that
person’s public reputation.
[14]Schedule 3 Savings and
transitional provisions
Insert before clause 1:
1ASavings or transitional
regulations
(1)
The Governor may make regulations containing
provisions of a savings or transitional nature consequent on the enactment of
the following Acts:
University
Legislation Amendment Act 2004
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
[15]Schedule 3, clause
13
Insert after clause 12:
13Provisions consequent on
enactment of University Legislation Amendment Act
2004
(1)
In this clause:
amending
Act means the University
Legislation Amendment Act 2004.
former
section 9 means section 9 as in force immediately before its
substitution by the amending Act.
new
section 9 means section 9 as substituted by the amending
Act.
relevant
day means the date of assent to the amending
Act.
(2)
Subject to this Act, on the relevant day:
(a)
a person holding office under former section 9
(2) ceases to hold that office, and
(b)
a person holding office under former section 9
(4) or (6) is taken to be appointed as a member under new section 9 (1) (b) or
(c), respectively, for the balance of the person’s term of office,
and
(c)
a person holding office under former section 9
(5) (a), (b), (c) or (d) is taken to be elected as a member under new section
9 (1) (d), (e), (f) or (g), respectively, for the balance of the
person’s term of office.
(3)
On, or as soon as is reasonably practicable
after, the relevant day, the Minister must appoint the balance of the members
required to be appointed under new section 9 (1) (b).
(4)
The Council is to make all necessary by-laws and
take all necessary steps to ensure, as far as possible, that the Council is
duly constituted under new section 9 as soon as is reasonably practicable
after the relevant day.
(5)
For the purposes of making the by-laws referred
to in subclause (4), the Council must be constituted so as to include all of
the members required to be appointed under new section 9 (1)
(b).
(6)
The Council is taken to be properly constituted
until such time as it is constituted in accordance with new section
9.
(7)
A casual vacancy occurring in the office of a
member before the Council is duly constituted under new section 9 is to be
filled as follows:
(a)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (b), the Minister is to appoint a person
whom the Minister considers appropriate,
(b)
if the vacancy occurs in the office of a member
appointed under new section 9 (1) (c), the Council is to appoint a person whom
the Council considers appropriate,
(c)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (d) or (e), the Council is to appoint a person
qualified to hold that office,
(d)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (f), the Council is to appoint a person
qualified to hold that office following consultation with the relevant student
body or bodies recognised by the Council,
(e)
if the vacancy occurs in the office of a member
elected under new section 9 (1) (g), the Council is to appoint a person
qualified to hold that office following consultation with the alumni
association or body for the University.
(8)
Subject to this Act, a member appointed under
subclause (7) holds office from the time that person is appointed under that
subclause until the expiry of the term of that member’s
predecessor.
(9)
Subject to this Act, if, on the expiry:
(a)
of a member’s term of office that is
continued under subclause (2) (b) or (c), or
(b)
in the case of a member appointed under subclause
(7), of the term of office of the member’s
predecessor,
the by-laws necessary to enable a person to be duly
appointed or elected (as the case may be) to that office under new section 9
are not yet in force, the member may continue to hold that office until such
time as a person is so duly appointed or elected.
(10)
For the purposes of subclause (2), a member
filling a casual vacancy and holding office immediately before the relevant
day is taken to hold that office immediately before the relevant day under the
provision under which the member’s predecessor was elected or
appointed.
(11)
A person who ceases to hold office under
subclause (2) (a):
(a)
is not entitled to any remuneration or
compensation because of loss of that office, and
(b)
is eligible (subject to this Act and if otherwise
qualified) to be appointed as a member.
(12)
Consecutive years of office served by a member of
the Council immediately before the relevant day are to be taken into account
in applying clause 1 (3) of Schedule 1 in respect of the
member.
(13)
However, clause 1 (3) of Schedule 1 does not
affect the operation of subclause (2) (b) or (c) or (9) of this
Schedule.
(14)
Section 21G, as inserted by the amending Act,
applies only in relation to breaches of duty constituted by acts or omissions
occurring after the relevant day.
(15)
No amendment made by the amending Act affects the
continuity of the Council.
(16)
The provisions of this clause are subject to any
regulations made under clause 1A.
Historical
notes
Table of amending
instruments
University
Legislation Amendment Act 2004 No 115. Second reading
speech made: Legislative Assembly, 26.10.2004; Legislative Council, 9.12.2004.
Assented to 21.12.2004. Date of commencement, assent, sec
2.