Schedule Operation of board of MBANZ

ss 62, 63, 65

Appointment of members of board

1 Criteria for appointment

• The criteria that must be taken into account for the governance experience and key competencies required for the board as a whole include, but are not limited to,—

  • Governance experience

  • (a) practical or professional commercial or business experience:

  • (b) investment or banking experience:

  • Key competencies

  • (c) understanding of the issues relevant to Māori economic development:

  • (d) expertise and experience in the management of the Māori asset base:

  • (e) entrepreneurial expertise and experience:

  • (f) competency in te reo Māori and knowledge of tikanga Māori.

2 Qualification for appointment to board

• (1) A natural person who is not disqualified under subclause (2) may be appointed to be a member of the board.

  (2) The following persons are disqualified from being a member:

  • (a) a person who is an undischarged bankrupt:

  • (b) a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under the Companies Act 1993, the Securities Act 1978, the Securities Markets Act 1988, or the Takeovers Act 1993:

  • (c) a person who is subject to a property order made under section 10, 11, 12, 30, or 31 of the Protection of Personal and Property Rights Act 1988, or whose property is managed by a trustee corporation under section 32 of that Act:

  • (d) a person who has been convicted of an offence punishable by imprisonment for a term of 2 years or more, or who has been sentenced to imprisonment for any other offence, unless that person has obtained a pardon or served the sentence or otherwise suffered the penalty imposed on the person:

  • (e) a person who has failed to disclose all interests in accordance with clause 4(4)(a).

3 Term of appointment of board members

• (1) A member—

  • (a) holds office for a term not exceeding 3 years, or any shorter term stated in the notice of appointment given under clause 4(1); and

  • (b) may be reappointed for 1 further term; but

  • (c) must not hold office for more than 2 continuous terms.

  (2) Subject to clause 19 or 20, on the expiry of a term of office, a member continues in office until—

  • (a) the member is reappointed; or

  • (b) the member’s successor is appointed; or

  • (c) the member is notified in writing by the responsible Ministers that the member is not to be reappointed and that no successor is to be appointed.

  (3) A copy of any notice given under this clause must be provided to MBANZ.

4 Method of appointment of members of board

• (1) Members are appointed by written notice given by the responsible Ministers.

  (2) A copy of every notice of appointment must be provided to MBANZ by the responsible Ministers.

  (3) A person must not be appointed until the following matters are agreed:

  • (a) the date on which the appointment takes effect; and

  • (b) the term of the appointment if for less than 3 years; and

  • (c) the conditions of the appointment.

  (4) Before a person may be appointed, he or she must—

  • (a) disclose to the responsible Ministers—

    • (i) the interests the person would have to disclose under clause 6 if he or she were a member; and

    • (ii) any other interests or relationships that might give rise to those interests; and

    • (iii) any other matters that, if they were known or occurred while he or she were a member, would be likely to result in that person’s removal from office under clause 19; and

  • (b) certify in writing to the responsible Ministers that he or she is not disqualified from being a member under clause 2(2); and

  • (c) give written notice to the responsible Ministers that he or she accepts appointment.

  (5) The acts of a person as a member are valid, even if—

  • (a) the person’s appointment was defective; or

  • (b) the person was not qualified for appointment.

Conflict of interest of members

5 When conflict of interest arises for board members

• (1) A member is interested in a matter relating to MBANZ if he or she—

  • (a) may derive a financial benefit from the matter; or

  • (b) is the spouse, civil union partner, de facto partner, child, or parent of a person who may derive a financial benefit from the matter; or

  • (c) may have a financial interest in a person to whom the matter relates; or

  • (d) is a partner, director, officer, board member, or trustee of a person who may have a financial interest in a person to whom the matter relates; or

  • (e) is otherwise directly or indirectly interested in the matter.

  (2) The matters relevant to subclause (1) include—

  • (a) the performance of a function or exercise of a power by MBANZ:

  • (b) a negotiation, arrangement, agreement, or contract made or entered into, or proposed to be made or entered into, by MBANZ.

  (3) However, a member is not interested in a matter—

  • (a) if his or her interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence him or her in carrying out his or her responsibilities under Part 2; or

  • (b) because he or she was provided with any indemnity, insurance cover, remuneration, or other benefits in the course of performing his or her functions or duties under Part 2.

6 Obligation to disclose interest

• (1) A member who is interested in a matter relating to MBANZ must, as soon as practicable after the member becomes aware that he or she is interested, disclose details of the interest—

  • (a) to the chairperson; or

  • (b) if the chairperson is unavailable or interested in the same matter, to the responsible Ministers.

  (2) If the chairperson is interested in a matter, he or she must, as soon as practicable after he or she becomes aware of that interest, disclose details of the interest to—

  • (a) the deputy chairperson (if any); and

  • (b) if the deputy chairperson is unavailable or interested in the same matter, to the responsible Ministers.

  (3) All interests must be fully disclosed in an interests register maintained by MBANZ.

7 Standing disclosure

• (1) A general notice of an interest in a matter relating to MBANZ, or in a matter that may in future relate to MBANZ, that is disclosed under clause 6 is a standing disclosure of that interest for the purposes of that clause.

  (2) A standing disclosure ceases to have effect if the nature of the interest materially alters or the extent of the interest materially increases.

8 What must be disclosed

• The details that must be disclosed under clause 6 are—

  • (a) the nature of the interest and the monetary value of the interest (if the monetary value can be quantified); or

  • (b) the nature and extent of the interest (if the monetary value cannot be quantified).

9 Consequences of being interested in matter

• A member who is interested in a matter relating to MBANZ—

  • (a) is to be disregarded for the purpose of forming a quorum for that part of a meeting of the board or committee during which a discussion or decision relating to the matter occurs or is made; and

  • (b) must not vote or take part in any discussion or decision of the board or any committee relating to the matter, or otherwise participate in any activity of the entity that relates to the matter; and

  • (c) must not sign any document relating to entering into a transaction or initiating the matter.

10 Consequences of failing to disclose interest

• (1) The board must notify the responsible Ministers of the failure of a member to comply with clause 6, 8, or 9 and of the acts affected, as soon as practicable after becoming aware of the failure.

  (2) A failure of a member to comply with clause 6, 8, or 9 does not affect the validity of an act or matter.

  (3) However, subclause (2) does not limit the right of any person to apply, in accordance with law, for judicial review.

11 Permission to act despite being interested in matter

• (1) The chairperson may, by prior written notice to the board, permit 1 or more members, or members with a specified class of interest, to do anything otherwise prohibited by clause 9, if the chairperson is satisfied that it is in the public interest to do so.

  (2) The permission may state any conditions that the member must comply with.

  (3) If the chairperson is unavailable or interested, the responsible Ministers may give the permission.

  (4) A permission given under this clause may be amended or revoked in the same way as it may be given.

  (5) The board must disclose an interest to which a permission relates in its annual report, together with a statement of who gave the permission and any conditions or amendments to, or revocation of, the permission.

Chairperson

12 Material interest of chairperson

• (1) In addition to any interest arising for the chairperson under clause 5, the chairperson has a material interest in a matter before the board if the matter is one that is, or relates to a matter, within the jurisdiction of the Māori Trustee under Part 1 or any other enactment other than Part 2.

  (2) If the chairperson has a material interest in a matter, the chairperson must—

  • (a) disclose details of that interest to the board and to the responsible Ministers; and

  • (b) withdraw from the proceedings of the board in relation to that matter.

  (3) The chairperson may make standing disclosures in accordance with clause 7.

  (4) The details of that must be disclosed under subclause (2)(a) are—

  • (a) the nature of the material interest; and

  • (b) the person or entity in relation to whom or which the Māori Trustee’s jurisdiction applies.

13 Consequences of chairperson failing to disclose

• (1) If, for any reason, the chairperson fails to disclose a material interest under clause 12, the board must, as soon as practicable after becoming aware of the chairperson’s material interest, notify the responsible Ministers of—

  • (a) the failure of the chairperson to make disclosure and withdraw from the proceedings of the board; and

  • (b) the matters required to be disclosed under clause 12(4).

  (2) However, a failure of the chairperson to comply with subclause (1)—

  • (a) invalidates decisions made by the board in relation to the matter in which the chairperson has a material interest; but

  • (b) does not limit the right of any person to apply, in accordance with the law, for judicial review.

Delegation

14 Ability to delegate

• (1) The board may delegate its functions or powers, either generally or specifically, by resolution and written notice to—

  • (a) a member or members of the board:

  • (b) the chief executive or other employee or office holder of MBANZ:

  • (c) a committee established in accordance with clause 18:

  • (d) any other person approved by the responsible Ministers:

  • (e) a subsidiary of MBANZ.

  (2) Subclause (1) does not apply to any functions or powers specified in this Act as not being capable of delegation.

  (3) The board must not delegate—

  • (a) this general power of delegation; or

  • (b) the power to borrow.

15 Powers of delegate

• (1) A delegate to whom any functions or powers of MBANZ or the board are delegated may,—

  • (a) unless the delegation provides otherwise, perform the function or exercise the power in the same manner, subject to the same restrictions and with the same effect as if the delegate were MBANZ or the board; or

  • (b) delegate the function or power, but only—

    • (i) with the prior written consent of the board; and

    • (ii) subject to the same restrictions, and with the same effect, as if the subdelegate were the delegate.

  (2) A delegate who purports to perform a function or exercise a power under a delegation—

  • (a) is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and

  • (b) must produce evidence of his or her authority to do so, if reasonably requested to do so.

16 Effect of delegation

• No delegation in accordance with this Act—

  • (a) affects or prevents the performance of any function or the exercise of any power by MBANZ or the board; or

  • (b) affects the responsibility of the board for the actions of any delegate acting under the delegation; or

  • (c) is affected by any change in the membership of the board or of any committee, or by any change in the chief executive or an employee.

17 Revocation of delegations

• (1) A delegation given under clause 14 may be revoked at will by—

  • (a) a resolution of the board and written notice to the delegate; or

  • (b) any other method provided for in the delegation.

  (2) A delegation given under clause 15(1)(b) may be revoked at will by written notice of the delegate to the subdelegate.

Committees

18 Board may appoint committees

• (1) The board may, by resolution, appoint 1 or more committees for the purposes of clause 14(1).

  (2) A committee—

  • (a) must consist of at least 1 member of the board; and

  • (b) may include any other person that the board thinks fit.

  (3) However, no person may be appointed to be a member of a committee unless, before appointment, that person discloses to the board the details of any interest that he or she may have if a member of the committee.

  (4) Clauses 5 to 11, 21, 23, 29, and 31 to 33 apply, with the necessary modifications, to each member of a committee who is not a member of the board, as if the committee member were a member of the board and, in the case of the disclosure obligations, as if the disclosure must be made to both the committee and the board.

  (5) If the board appoints a committee, it must include the remuneration and other benefits paid to committee members in the annual report, in accordance with section 68(2)(b)(iii).

  (6) Unless otherwise provided for in this Schedule, a committee may regulate its own procedure.

Removal and resignation of board members

19 Removal from office

• (1) A member may, at any time, be removed from office for any reason by written notice to the member by the responsible Ministers.

  (2) The reasons include (without limitation)—

  • (a) the factors relevant to disqualification under clause 2; or

  • (b) in 1 or more of the following circumstances, if the member:

    • (i) has brought MBANZ into disrepute:

    • (ii) has failed to comply with the duties under section 63:

    • (iii) has become a bankrupt:

    • (iv) has acted with financial impropriety:

    • (v) has been unable to perform his or her functions of office:

    • (vi) has performed the functions of office inadequately:

    • (vii) has failed to attend 3 consecutive meetings of the board, without obtaining the prior consent of the board:

    • (viii) has failed to disclose, without reasonable excuse and as soon as possible after the relevant facts become known to the member, an interest in a matter being considered or about to be considered by the board.

  (3) Before removing a member from office, the responsible Ministers must give the member a reasonable opportunity to make submissions or be heard on the proposal to remove him or her.

  (4) The notice of removal must state the reasons for removal.

20 Resignation

• (1) A member of the board may resign from office by giving written notice to the responsible Ministers.

  (2) The member must provide a copy of the notice to MBANZ.

  (3) A resignation is effective on receipt of the notice by the responsible Ministers, or at a later time as specified in the notice, but in any case, not later than 3 months after the date of the notice.

21 No entitlement to compensation

• A member of the board is not entitled to compensation or other payment or benefit if he or she ceases for any reason to hold office as a member.

Vacancies in board’s membership

22 Member of board ceasing to hold office

• A member ceases to hold office if that person—

  • (a) resigns in accordance with this Act; or

  • (b) is removed from office in accordance with this Act; or

  • (c) becomes disqualified from being a member under this Act; or

  • (d) otherwise ceases to hold office as a member in accordance with any enactment.

23 Vacancy in membership of board

• (1) If a member, for any reason, ceases to hold office, the responsible Ministers may appoint another person to be a member.

  (2) A member appointed under subclause (1)—

  • (a) must be appointed in accordance with this Act; and

  • (b) may be appointed either—

    • (i) for the balance of the term for which the vacating member was appointed; or

    • (ii) for a new term, as provided for under clause 3(1).

Procedure for meetings of board

24 Procedure generally

• Unless otherwise provided in this Act, the board may regulate its own procedures.

25 Quorum for board meetings

• A quorum for a meeting of the board is more than half of the members of the board.

26 Ordinary and special meetings

• (1) The board must meet as often as it considers necessary for the efficient and proper conduct of the affairs of MBANZ, but in any event, the board must hold ordinary meetings at least 4 times a year.

  (2) The board or the chairperson must appoint the dates, times, and places for ordinary meetings of the board, and give not less than 5 working days’ written notice to members of—

  • (a) the date, time, and place of each meeting; and

  • (b) the agenda for the meeting.

  (3) The chairperson must convene a special meeting of the board if requested to do so in writing by more than half of the members.

  (4) The notice requirements of subclause (2) apply to a special meeting.

27 Conduct of meetings of board

• (1) The chairperson must preside at all meetings of the board if he or she is present.

  (2) If the chairperson is absent or for any other reason is unavailable,—

  • (a) the deputy chairperson (if 1 was named under section 61(3)) must preside; or

  • (b) if there is no deputy chairperson or the deputy chairperson is absent or unavailable for any reason,—

    • (i) and another member has been given delegated authority to act as the chairperson, that member must preside; and

    • (ii) in any other case, the members present must elect 1 of their number to be the chairperson for the meeting.

  (3) The person acting or elected under subclause (2) has and may exercise all the powers and carry out all the duties and functions of the chairperson for the purposes of the meeting.

  (4) The chairperson may permit members to participate in meetings, or in a particular meeting, by any means of communication that allows the members reasonably to engage in the proceedings of the meeting.

28 Voting at meetings

• (1) Each member of the board has 1 vote, unless subclause (3) applies.

  (2) All questions arising at a meeting of the board must be decided by a majority of the members present and voting.

  (3) The chairperson or member presiding at the meeting has a deliberative vote and, in the case of an equality of votes, also has a casting vote.

  (4) A written resolution signed by all the members of the board is as effective for all purposes as a resolution passed at a properly convened and conducted meeting of the board, and a resolution may comprise more than 1 duplicated document, each signed by 1 or more of the members.

Remuneration and allowances

29 Remuneration and allowances for members of board

• (1) A member of the board may not receive payments or fees as an employee of, or consultant for,—

  • (a) MBANZ; or

  • (b) any subsidiary or related entity of MBANZ.

  (2) A member is entitled to receive, from the funds of MBANZ, remuneration for services as a member, at a rate and of a kind determined by the responsible Ministers in accordance with the appropriate fees framework determined by the Government.

  (3) A member is entitled to be reimbursed, from the funds of MBANZ, for actual and reasonable travelling and other expenses incurred in the performance of his or her office as a member.

30 Remuneration and allowances for directors of subsidiaries

• (1) A director of a subsidiary is entitled to receive, from the funds of the subsidiary,—

  • (a) remuneration and other benefits at a rate and of a kind determined by the responsible Ministers in accordance with the appropriate fees framework determined by the Government; and

  • (b) payment of reimbursing allowances or actual and reasonable expenses incurred in undertaking his or her duties as a member of the governing body of the subsidiary.

  (2) The remuneration and other benefits referred to in subclause (1)(a) must be determined before MBANZ forms or acquires shares in a subsidiary.

Protection from liability for members and employees

31 Immunity of members and employees

• (1) A member of the board or an employee of MBANZ is not personally liable—

  • (a) for any liability of MBANZ by reason only of being a member or an employee; or

  • (b) to any person (other than MBANZ) for any act or omission by him or her in performing, or the intended performance of, the functions or duties or the exercise or intended exercise of the powers of MBANZ, unless done in bad faith.

  (2) MBANZ is liable for any act or omission for which, but for this clause, the member or employee would have been liable in person.

  (3) In this clause and clause 32,—

  employee includes a former employee

  indemnify includes to relieve or excuse from liability, whether before or after the liability arises

  member includes a former member.

32 Indemnity and insurance for members and employees

• (1) MBANZ may indemnify a member of the board or employee of MBANZ for—

  • (a) acts or omissions done or omitted by him or her in good faith in performing, or the intended performance of, the functions of MBANZ; and

  • (b) costs incurred in defending or settling a claim or proceedings relating to that liability.

  (2) MBANZ may effect insurance cover for a member of the board or employee of MBANZ in relation to acts or omissions described in subclause (1)(a), except if the act or omission is done or omitted—

  • (a) in bad faith:

  • (b) otherwise than in performing, or the intended performance of, MBANZ’s functions.

  (3) A member or employee who is indemnified or insured by MBANZ in breach of this clause must repay to MBANZ the cost of providing indemnity or effecting insurance cover, to the extent that the indemnity or insurance cover exceeds what is permitted by this clause.

  (4) MBANZ may recover the amount as a debt due in a court of competent jurisdiction.

Information held by or provided to MBANZ

33 Confidentiality, disclosure, and use of information

• (1) A member of the board who, in his or her capacity as a member, has confidential information that would not otherwise be available to the member must not disclose the information to any person or use or act on it except—

  • (a) for the purposes of MBANZ; or

  • (b) as required or permitted by law; or

  • (c) in complying with the requirement for members to disclose interests.

  (2) Subclause (1) does not apply if the member is first authorised to disclose, use, or act on information by the board.

  (3) In this clause, confidential information means information that the board determines must be treated in confidence.

34 Provision of information for purpose of review

• For the purpose of a review conducted under section 73,—

  • (a) the reviewer commissioned under that section may make a written request to MBANZ for information relating to the operation and activities of MBANZ; and

  • (b) MBANZ must, as soon as is reasonably practicable, supply to the reviewer any information that is reasonably required for the review.

35 Reliance on information and advice

• (1) A member of the board, when acting as a member, may rely on reports, statements, financial data, and other information prepared or supplied, and on professional or expert advice given, by any of the following persons:

  • (a) an employee of MBANZ whom the member believes on reasonable grounds is reliable and competent in relation to the matters concerned; or

  • (b) a professional adviser or expert in relation to matters that the member believes on reasonable grounds are within the person’s professional or expert competence; or

  • (c) any other member, or a committee, of the board on which the director did not serve in relation to matters within the member’s or committee’s designated authority; or

  • (d) the Crown.

  (2) Subclause (1) applies to a member only if the member—

  • (a) acts in good faith; and

  • (b) makes proper inquiry, if the need for inquiry is indicated by the circumstances; and

  • (c) has no knowledge that the reliance is unwarranted.

Bank accounts

36 MBANZ must have bank accounts

• (1) MBANZ must have 1 or more bank accounts, as necessary for carrying out its functions and duties and exercising its powers, at any registered bank (within the meaning of the Reserve Bank of New Zealand Act 1989).

  (2) All money received by MBANZ, or for or on its behalf by a member of the board or an employee, must be paid into a bank account of MBANZ as soon as practicable after the money has been received.

  (3) MBANZ must properly authorise the withdrawal or payment of money from or into its bank accounts.

Contracting

37 Method of contracting

• (1) A contract or other enforceable obligation may be entered into by MBANZ as provided in this clause.

  (2) An obligation that, if entered into by an individual, is required to be by deed, may be entered into on behalf of MBANZ in writing, signed under the name of MBANZ by—

  • (a) 2 or more of the members of the board; or

  • (b) 1 or more attorneys appointed by MBANZ under clause 38.

  (3) An obligation that, if entered into by an individual, is required to be in writing, may be entered into on behalf of MBANZ in writing by a person acting under the express or implied authority of MBANZ.

  (4) An obligation that, if entered into by an individual, is not required to be in writing, may be entered into on behalf of MBANZ in writing or orally by a person acting under the express or implied authority of MBANZ.

  (5) MBANZ may, in addition to complying with subclauses (1) to (4), affix its common seal (if it has one) to the instrument.

  (6) This clause and clause 38 apply to a contract or other obligation—

  • (a) whether or not that obligation was entered into in New Zealand; and

  • (b) whether or not the law governing that obligation is the law of New Zealand.

38 Appointment of attorneys

• (1) MBANZ may, by an instrument in writing executed as a deed, appoint a person as its attorney, either generally or in relation to a specified matter.

  (2) An act of the attorney in accordance with the instrument binds MBANZ.

Chief executive of MBANZ

39 Appointment of chief executive

• (1) The board must appoint a chief executive of MBANZ.

  (2) The chief executive must not be a member of the board.

  (3) In appointing a chief executive, the board must—

  • (a) act independently; and

  • (b) be satisfied that the proposed appointee has disclosed the interests that he or she would, if he or she were a member, have to disclose at that time under clauses 6 and 7; and

  • (c) determine the terms and conditions of employment for the chief executive, including remuneration and allowances.

40 Role of chief executive

• The chief executive is responsible to the board for the efficient and effective administration of the day-to-day operations of MBANZ and must act in accordance with the lawful policies and directions of the board.

41 Method of appointment

• (1) The board must appoint the chief executive by written notice to the person to be appointed.

  (2) The notice must—

  • (a) state—

    • (i) the date when the appointment begins; and

    • (ii) the term of the appointment; and

    • (iii) the terms and conditions of employment; and

  • (b) be given only after the person to be appointed has disclosed any interests to the board, as provided for in clauses 5 and 6.

42 Terms and conditions of employment

• (1) The chief executive holds office on a full-time basis.

  (2) The appointment of the chief executive is for a term of not more than 5 years.

  (3) The chief executive is eligible for reappointment, but for no longer than 1 further term of not more than 5 years.

  (4) The chief executive performs his or her functions subject to the control and direction of the board.

43 Delegation by chief executive

• (1) The chief executive may, either specifically or generally, delegate in writing to an employee—

  • (a) his or her functions, duties, or powers; and

  • (b) any functions, duties, or powers delegated to the chief executive by the board, subject to the consent of the board.

  (2) The chief executive must not delegate this power to delegate.

  (3) Clause 16 applies to a delegation by the chief executive.