Education Act 1989

Schedule 6
Other provisions applying to boards

s 117

1 Status of board

  • (1) A board (and not the school) is a body corporate.

    (2) A board—

    • (a) is accordingly a legal entity separate from its members, office holders, employees, and the Crown; and

    • (b) continues in existence until it is dissolved in accordance with this Act.

    Schedule 6 clause 1: substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

1A Things board can do

  • (1) A board may do anything authorised by this Act.

    (2) A board may do anything that a natural person of full age and capacity may do.

    (3) Subclause (2) applies except as provided in this Act or another Act or rule of law.

    (4) A board may do an act under this clause only for the purpose of performing its functions.

    (5) References in this clause to this Act include the provisions of the Crown Entities Act 2004 that are applied by Schedule 5A of this Act.

    Schedule 6 clause 1A: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Validity of Acts

  • Heading: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

1B Acts in breach of statute are invalid

  • (1) An act of a board is invalid, unless clause 1C applies, if it is—

    • (a) an act that is contrary to, or outside the authority of, an Act; or

    • (b) an act that is done otherwise than for the purpose of performing its functions.

    (2) Subclause (1) does not limit any discretion of a court to grant relief in respect of a minor or technical breach.

    Schedule 6 clause 1B: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

1C Some natural person acts protected

  • (1) Clause 1B or any rule of law to similar effect does not prevent a person dealing with a board from enforcing a transaction that is a natural person act unless the person dealing with the board had, or ought reasonably to have had, knowledge—

    • (a) of an express restriction in an Act that makes the act contrary to, or outside the authority of, the Act; or

    • (b) that the act is done otherwise than for the purpose of performing the board's functions.

    (2) In this clause, natural person act—

    • (a) means an act that a natural person of full age and capacity can do (whether or not the act is something that is also authorised by an Act); and

    • (b) includes entry into a contract for, or relating to,—

      • (i) acquisition of securities or borrowing of money; or

      • (ii) a derivative transaction; or

      • (iii) the purchase, leasing, or sale of, or other dealings with, property; or

      • (iv) the employment, or engagement of the services, of a person.

    (3) A person who relies on subclause (1) has the onus of proving that that person did not have, and ought not reasonably to have had, the knowledge referred to in that subsection.

    (4) A board must report, in its annual report, each transaction that the board has performed in the year to which the report relates that was invalid under clause 1B but enforced in reliance on subclause (1).

    (5) For the avoidance of doubt, this section does not affect any person's remedies (for example, remedies in contract) under the general law.

    Schedule 6 clause 1C: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

1D Acts that are not in best interests of board

  • It is irrelevant to the validity of an act that the act is not, or would not be, in the best interests of a board.

    Compare: 1993 No 105 s 17(3)

    Schedule 6 clause 1D: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

1E Dealings between boards and other persons

  • (1) A board may not assert against a person dealing with the board that—

    • (a) a person held out by the board to be a member, office holder, chief executive, employee, or agent of the board (as the case may be)—

      • (i) has not been duly appointed in that capacity or has ceased to be appointed in that capacity; or

      • (ii) does not have the authority to exercise a power that, given the nature of the board, a person appointed to that capacity customarily has authority to exercise; or

      • (iii) does not have the authority to exercise a power that the board holds him or her out as having; or

    • (b) a document issued on behalf of the board by a member, office holder, chief executive, employee, or agent of the board with actual or usual authority to issue the document is not valid or genuine.

    (2) However, a board may assert any of those matters if the person dealing with the board has, or ought reasonably to have had, knowledge of the matter.

    (3) Nothing in this clause affects a person's right to apply, in accordance with the law, for judicial review.

    Compare: 1993 No 105 s 18

    Schedule 6 clause 1E: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

1F Interpretation

  • In clauses 1B to 1E, unless the context otherwise requires,—

    act includes a transfer of property, rights, or interests to or by a board

    do includes—

    • (a) to do an act; and

    • (b) to have a capacity; and

    • (c) to have or exercise a power, right, or privilege

    person dealing—

    • (a) means the other party to the transaction, if the act of the board is a transaction; and

    • (b) includes a person who has acquired property, rights, or interests from a board.

    Schedule 6 clause 1F: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Whole of government directions

  • Heading: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

1G Whole of government directions

  • (1) A board must comply with any whole of government direction given under section 107 of the Crown Entities Act 2004.

    (2) The board may be dissolved under section 78I(1)(e) if it does not.

    Schedule 6 clause 1G: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

2 Boards exempt from taxation

  • (1) Every board is hereby deemed to be the agent of the Crown in respect of its property and the exercise of its functions, and is entitled accordingly to all the privileges the Crown enjoys in respect of exemption from taxation and the payment of fees or charges, and from other obligations.

    (2) Nothing in subclause (1) exempts a board from—

    • (b) any obligation imposed by that Act.

3 Names of boards

  • The name of a board is “The [name of school or institution] Board of Trustees”.

4 Trustees not personally liable

  • No trustee is personally liable for—

    • (a) any act done or omitted by the board; or

    • (b) any loss to the board arising out of any act done or omitted by the trustee,—

    if the act or omission was (so far as the trustee's involvement is concerned) in good faith in pursuance or intended pursuance of the functions of the board.

5 Affixing of board's seal

  • (1) A board's common seal shall not be affixed to a document except pursuant to a resolution of the board.

    (2) The affixing of a board's common seal to a document shall be countersigned by at least 2 trustees.

6 Actions of boards not to be questioned for informality in membership

  • The powers of a board are not affected by—

    • (a) any vacancy in its membership; or

    • (b) the discovery of any error or defect in the election, appointment, or co-option of any trustee; or

    • (c) the fact that any elected, appointed, or co-opted trustee acted as a trustee while a person who may not (in terms of section 103(1)) become an elected, appointed, or co-opted trustee; or

    • (d) the fact that a person continued acting as a trustee after the person's office as a trustee became vacant and (in the case of a person whose election as a trustee has been declared invalid under clause 9 or by a court), before the person's election was declared invalid.

7 One trustee to preside at meetings

  • (1) Every board must appoint a trustee (not being the principal or a staff or student representative) to preside at meetings of the board.

    (2) The appointment must be made—

    • (a) at the board's first meeting in any year, unless it is an election year, in which case it must be at the first meeting held after the election; and

    • (b) when the board has resolved that it has no confidence in the person for the time being appointed; and

    • (c) when the person for the time being appointed ceases to be a trustee, or resigns the task by notice in writing to the board.

    Schedule 6 clause 7: substituted, on 17 May 2006, by section 55 of the Education Amendment Act 2006 (2006 No 19).

8 Meetings

  • (1) Every board shall hold a meeting not later than 3 months after its previous meeting, at a time and place determined at the previous meeting.

    (2) Where a board does not at any meeting determine a time and place for its next meeting, the time and place of its next meeting shall be determined—

    • (a) by the person for the time being appointed under clause 7; or

    • (b) where no such person is for the time being appointed, and a trustee who presided at the board's previous meeting is still a trustee, by the trustee; and

    • (c) where no such person is for the time being appointed, and either—

      • (i) such a person presided at the board's last meeting; or

      • (ii) the trustee who presided at the board's last meeting is no longer a trustee,—

      by the principal.

    (3) When a casual vacancy occurs, the person for the time being appointed under clause 7 or, where there is no such person, the principal must fix a place for a meeting of the board to deal with the vacancy, and a time for the meeting that is—

    • (a) within 28 days of the vacancy occurring, if it occurs during any period of 6 months commencing on 1 October in a year before an election year; or

    • (b) within 8 weeks of the vacancy occurring, if it occurs at any other time.

    (4) No business shall be transacted at any meeting of a board unless more than half the trustees then holding office are present.

    (5) At a meeting of a board,—

    • (a) the person for the time being appointed under clause 7 shall preside if present; and

    • (b) otherwise, a trustee (not being the principal or a staff or student representative) appointed by the board at the meeting shall preside.

    (6) Every question before a board shall be decided by a majority of the votes cast on it by trustees present.

    (7) At a meeting of a board, the person presiding has a deliberative vote on every question and, on any question where deliberative votes for and against are equal, also has a casting vote.

    (8) Subject to subclause (11), a trustee who has a pecuniary interest in any matter or any interest that may reasonably be regarded as likely to influence a trustee in carrying out his or her duties and responsibilities as a trustee shall be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides, the matter.

    (9) Subject to subclause (11), a trustee who is a member of the board staff shall be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides, any matter relating to the trustee's employment by the board, or to the course of action to be taken following the hearing of a complaint against the trustee (being a complaint against the trustee in the trustee's capacity as a member of the board staff).

    (10) Subject to subclause (11), a trustee who is a student enrolled at the school or institution shall be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides, any matter relating to the trustee as an individual student.

    (11) A trustee may attend any meeting of the board to give evidence, make submissions, or answer questions.

    (11A) A meeting of the board may be held—

    • (a) by more than half the trustees then holding office being assembled together at the time and place appointed for the meeting; or

    • (b) by means of audio, audio and visual, or electronic communication provided that—

      • (i) all of the trustees who wish to participate in the meeting have access to the technology needed to participate in the meeting; and

      • (ii) a quorum of members can simultaneously communicate with each other throughout the meeting.

    (11B) A resolution signed or assented to in writing (whether sent by post, delivery, or electronic communication) by all members is as valid and effectual as if it had been passed at a meeting of the board duly called and constituted.

    (11C) The resolution may consist of several documents containing the same resolution, each signed or assented to in writing by 1 or more members.

    (12) Except as provided in this Act, every board shall determine its own procedures.

    Schedule 6 clause 8(3): substituted, on 20 May 2010, by section 72 of the Education Amendment Act 2010 (2010 No 25).

    Schedule 6 clause 8(8): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Schedule 6 clause 8(11A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Schedule 6 clause 8(11B): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

    Schedule 6 clause 8(11C): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

9 Validation and invalidation of elections of boards

  • (1) Where—

    • (a) anything required to be done in connection with an election under this Act—

      • (i) has been done after the time it is required to be done; or

      • (ii) has not been done at all; or

      • (iii) has been done irregularly; and

    • (b) the Minister thinks the lateness, omission, or irregularity could not materially have affected the result of the election,—

    the Minister may, by notice in the Gazette, validate the lateness, omission, or irregularity.

    (2) Where anything required to be done in connection with an election under this Act cannot be done at or by the time at or by which it is required to be done, the Minister may, at any time, by notice in the Gazette, extend the time for doing it.

    (3) Subclause (3A) applies if there occurs in connection with an election under this Act—

    • (a) any lateness, omission, or irregularity that is capable of being validated under this clause, but which the Minister thinks would be improper or undesirable to validate; or

    • (b) any other irregularity that the Minister thinks could materially have affected the result of the election.

    (3A) If this subclause applies to an election, the Minister may at any time within 60 days of the election, by notice in the Gazette,—

    • (a) declare the election invalid; and

    • (b) require a new election to be held on a day specified in the notice; and

    • (c) declare that the trustees holding office on the date of the invalid election remain in office until the close of the day before the day on which the new trustees take office.

    (4) Every notice under this clause shall have effect according to its tenor.

    Schedule 6 clause 9 heading: amended, on 19 December 1998, by section 59 of the Education Amendment Act (No 2) 1998 (1998 No 118).

    Schedule 6 clause 9(3): substituted, on 19 December 1998, by section 59 of the Education Amendment Act (No 2) 1998 (1998 No 118).

    Schedule 6 clause 9(3A): inserted, on 19 December 1998, by section 59 of the Education Amendment Act (No 2) 1998 (1998 No 118).