Education Amendment Act 2015

10 New sections 176A to 176E inserted

After section 176, insert:

176A Individual duties of members of councils

(1)

A member of the council of an institution, when acting as a member of the council in any circumstances,—

(a)

must—

(i)

act with honesty and integrity; and

(ii)

act in the interests of the institution as a whole; and

(iii)

act in a manner that promotes the performance of the functions characteristic of an institution of the kind to which he or she belongs, and the duties of the council; and

(iv)

act in good faith, and not pursue his or her own interests at the expense of the council’s interests; and

(b)

must exercise the care, diligence, and skill that a reasonable person would exercise in the same circumstances, taking into account—

(i)

the nature of the institution; and

(ii)

the nature of the action; and

(iii)

the position of the member as a member of the council of an institution, and the nature of the responsibilities undertaken by him or her; and

(c)

must not disclose any information to which subsection (3) applies to any person, or make use of, or act on, that information, except—

(i)

in the performance of the council’s functions; or

(ii)

as required or permitted by law; or

(iii)

if he or she has earlier been authorised to do so by the council; or

(iv)

if disclosing, making use of, or acting on it will not, or will be unlikely to, prejudice the council or the institution; or

(v)

in complying with requirements for members to disclose interests.

(2)

The fact that a member of the council of an institution was appointed by the council in accordance with a statute providing for the appointment of a member (or 2 or more members) to represent the interests of a stated institution or of people or institutions of a stated description does not displace or limit the member’s duty under subsection (1)(a)(ii) to act in the interests of the institution as a whole.

(3)

This subsection applies to information that—

(a)

a member of the council of an institution has in his or her capacity as a member of the council; and

(b)

would not otherwise be available to him or her.

(4)

Subparagraphs (i) to (iii) of paragraph (b) of subsection (1) do not limit the generality of that paragraph.

176B Accountability for individual duties

(1)

The duties of a member of the council of an institution (council member) under section 176A (individual duties) are duties owed to the Minister and the council.

(2)

A council member who does not comply with his or her individual duties may be removed from office under section 176C or 222AJ (as the case requires).

(3)

The council of an institution may bring an action against a council member for breach of any individual duty.

(4)

Except as provided in subsections (2) and (3), a council member is not liable for a breach of an individual duty.

(5)

This section does not affect any other ground for removing a council member from office.

(6)

Subsection (4) does not affect anything for which a council member may be liable under any other Act or rule of law arising from the act or omission that constitutes the breach concerned.

(7)

Subsection (4) does not affect anything for which a council member who is the chief executive of the institution concerned may, as chief executive, be liable under this Act or any other Act or rule of law, arising from the act or omission that constitutes the breach concerned.

176C Removal of members

(1)

If the council of an institution believes that the actions of a member may justify his or her removal from office, it must give the Minister a written report stating—

(a)

its reasons for believing that the actions may justify his or her removal; and

(b)

the information or grounds in support of those reasons; and

(c)

its recommendation as to whether the member should be removed from office.

(2)

After considering the report, the Minister may, if satisfied that there is just cause to do so, remove the member from office.

(3)

The removal must be made by written notice to the member (with a copy to the council).

(4)

The notice must state—

(a)

the day on which the removal takes effect, which must not be earlier than the day on which the notice is received; and

(b)

the reasons for the removal.

(5)

The Minister must notify the removal in the Gazette as soon as practicable after giving the notice.

(6)

This section does not limit or affect section 174.

(7)

For the purposes of subsection (2), just cause includes misconduct, inability to perform the functions of office, neglect of duty, and breach of any of the collective duties of the council or the individual duties of members (depending on the seriousness of the breach).

(8)

Subsections (1) to (7) do not apply to the removal from office of a member of the council of a designated polytechnic (for which section 222AJ provides).

176D Process for removal

The Minister may remove a member of the council of an institution under section 176C with as little formality and technicality, and as much expedition, as is permitted by—

(a)

the principles of natural justice; and

(b)

a proper consideration of the matter; and

(c)

the requirements of that section.

176E Application of Local Authorities (Members’ Interests) Act 1968

(1)

A council of an institution is not a local authority for the purposes of the Local Authorities (Members’ Interests) Act 1968.

(2)

Subsection (1) is for the avoidance of doubt.