Div 4The Executive Board of Anangu Pitjantjatjara Yankunytjatjara

Division 4—The Executive Board of Anangu Pitjantjatjara Yankunytjatjara 9—Executive Board of Anangu Pitjantjatjara Yankunytjatjara (1) There shall be an Executive Board of Anangu Pitjantjatjara Yankunytjatjara. (2) The Executive Board consists of up to 14 members elected or appointed in accordance with this Act. Each electorate will be able to elect 1 male member and 1 female member of the Executive Board. (2a) A person may not, while holding office as the Director of Administration, the General Manager or an employee of Anangu Pitjantjatjara Yankunytjatjara, be a member of the Executive Board. (4) A member of the Executive Board holds office until the next election of members and is, subject to the constitution, eligible for re-election. (6) An election of members of the Executive Board— (a) must (unless the Minister determines otherwise) be conducted during the period commencing on 1 May and ending on 31 August in the third year following the previous election; and (b) must be conducted by the Electoral Commissioner— (i) in accordance with the rules set out in Schedule 3; and (ii) to the extent that the rules set out in Schedule 3 fail to deal with a matter that, in the opinion of the Electoral Commissioner, is necessary for the proper conduct of the election—in accordance with rules determined by the Electoral Commissioner in relation to that matter. (7) The validity of any election or return may be disputed in accordance with Schedule 3 and not otherwise. (8) The Electoral Commissioner must review the electorates constituted in accordance with Schedule 3 to be reviewed not later than 3 months prior to each election (and such a review must include consultation with Anangu Pitjantjatjara Yankunytjatjara and the Executive Board). (9) Subject to subsection (11), a member of the Executive Board must, within 3 months after being elected or appointed, commence a course of training related to corporate governance that has been approved by the Minister. (10) The Minister must determine an application for approval of such a course within 28 days after receiving the application, and may, in determining whether to approve a course, take into consideration any matter the Minister thinks fit. (11) The Minister may, by notice in writing, exempt a member of the Executive Board from the requirement under subsection (9) on any ground the Minister thinks fit. 9A—Offences relating to election of Executive Board (1) A person who— (a) exercises violence or intimidation, or offers or gives a bribe, with a view to— (i) inducing a person to submit or withdraw candidature for an election under section 9; or (ii) influencing the vote of a person at such an election; or (iii) otherwise interfering with the due course of an election; or (b) receives a bribe offered in contravention of paragraph (a), Maximum penalty: $10 000 or imprisonment for seven years. (2) A person who— (a) dishonestly exercises, or attempts to exercise, a vote at an election under section 9 to which that person is not entitled; or (b) dishonestly influences or attempts to influence the result of such an election; or (c) hinders or interferes with the free exercise or performance, by another person, of a right in respect of such an election, (3) A person who is a candidate for election or acting on behalf of such a candidate (whether with or without the candidate's authority) must not act as an assistant to a person voting at the election. (4) A scrutineer must not act as an assistant to a person voting at an election. (5) A person must not, by clandestine or dishonest means, attempt to discover how another person has voted. Maximum penalty: $1 250 or imprisonment for 3 months. (6) A person who acquires knowledge of the vote of another person in the exercise of powers or functions under this Act must not divulge that knowledge. Maximum penalty: $2 500 or imprisonment for 6 months. (7) To avoid doubt, no declaration of public policy or promise of public action constitutes bribery or dishonest influence. (8) In this clause— bribe includes any pecuniary sum or material advantage including food, drink or entertainment. 9B—Functions and powers of the Executive Board (1) The Executive Board is the governing body of Anangu Pitjantjatjara Yankunytjatjara. (2) Subject to this Act, the Executive Board— (a) is responsible for carrying out the functions of Anangu Pitjantjatjara Yankunytjatjara and the day-to-day business of Anangu Pitjantjatjara Yankunytjatjara; and (b) may, in carrying out the functions of Anangu Pitjantjatjara Yankunytjatjara, exercise any power conferred on Anangu Pitjantjatjara Yankunytjatjara by or under this Act. (3) The Executive Board must, in carrying out its functions, endeavour to advance the interests of Anangu at all times. (4) The Executive Board must comply with a resolution of Anangu Pitjantjatjara Yankunytjatjara made at an annual or special general meeting held in accordance with this Act that directs the Executive Board to act, or to not act, in a specified manner. (5) An act of the Executive Board done in accordance with this Act is binding on Anangu Pitjantjatjara Yankunytjatjara. 9C—Chairperson and Deputy Chairperson (1) Subject to this section, the Executive Board must elect 1 of its number to be the Chairperson, and 1 to be the Deputy Chairperson. (2) An election of a Chairperson or Deputy Chairperson— (a) must take place at the first meeting of the Executive Board following the office or offices of Chairperson or Deputy Chairperson (as the case requires) becoming vacant; and (b) must, unless the election is uncontested, be by secret ballot. (3) The office of Chairperson or Deputy Chairperson— (a) becomes vacant on the day that an election is held under section 9; and (b) becomes vacant when the Chairperson or Deputy Chairperson (as the case requires) resigns from that position by notice in writing given to— (i) in the case of the resignation of the Chairperson—the Deputy Chairperson; or (ii) in the case of the resignation of the Deputy Chairperson—the Chairperson; and (c) becomes vacant when a casual vacancy occurs in the office of the member of the Executive Board who is the Chairperson or Deputy Chairperson (as the case requires); and (d) becomes vacant when the casual vacancy referred to in paragraph (c) is filled in accordance with section 9D. (4) The Chairperson is, in addition to his or her remuneration, allowances and expenses as a member of the Executive Board, entitled to an allowance determined by the Executive Board and approved by the Minister. (5) The Minister must determine to approve, or not approve, the proposed allowance within 28 days after receiving the proposal, and may, in determining whether to approve the allowance, take into consideration any matter the Minister thinks fit. 9D—Casual vacancies (1) The Executive Board may, by resolution passed by at least a two-thirds majority, remove a member of the Executive Board from office if the member— (a) becomes physically or mentally incapable of carrying out official duties satisfactorily; or (b) fails to comply with a duty imposed under section 12B, 12C, 12D or 12F; or (c) is absent, without leave of the Executive Board, from 3 or more consecutive meetings (the first of which having been held 3 months or more before the last); or (ca) resides, without leave of the Executive Board, other than in the electorate from which he or she was elected for a total period of more than 3 months in any 12 month period; or (d) engages in serious misconduct. (2) The office of a member of the Executive Board becomes vacant if the member— (a) dies; or (b) completes a term of office and is not re-elected or reappointed; or (c) resigns by notice in writing addressed to the Chairperson; or (d) is sentenced to imprisonment for an offence; or (da) is found guilty of a serious offence; or (e) is disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; or (f) is appointed to the office of Director of Administration or General Manager or is employed by Anangu Pitjantjatjara Yankunytjatjara; or (g) is removed from office by the Executive Board under subsection (1). (3) Subsection (2)(d) or (da) do not apply until the period for appealing against the conviction or finding of guilt has expired or, if an appeal is lodged within that period, until the appeal is finalised. (4) The Minister may direct the Executive Board to remove a member from office who— (a) has failed to comply with a duty imposed under section 12B, 12C, 12D or 12F; or (b) has failed to attend 6 or more consecutive meetings of the Executive Board (the first of which having been held 6 months or more before the last). (5) If a casual vacancy occurs in the office of a member, a supplementary election must, subject to subsection (7), be held in accordance with the following provisions: (a) the supplementary election must be conducted in the electorate from which the member was elected; (b) the supplementary election must be held as soon as possible after the casual vacancy occurs; (c) only a person of the same gender as the member can be elected at the supplementary election; (d) the supplementary election must be conducted in accordance with Schedule 3 (with such modifications as the Electoral Commissioner thinks fit) as if the supplementary election were an election under section 9. (7) If— (a) no person nominates for a supplementary election; or (b) a casual vacancy occurs during the period of 6 months preceding the date on or before which an election must be held under section 9, then the Executive Board may appoint a suitable male or female Anangu (as the case requires) from the electorate from which the member was elected to fill the vacant office. (8) Subject to the provisions of the constitution relating to casual vacancies, a person elected or appointed to fill a casual vacancy will hold office for the balance of the term of the person's predecessor. 9E—Remuneration (1) A member of the Executive Board is entitled to remuneration, allowances and expenses determined by the Executive Board and approved by the Minister. (2) The Minister must determine to approve, or not approve, the proposed remuneration, allowances and expenses within 28 days after receiving the proposal, and may, in determining whether to approve the proposal, take into consideration any matter the Minister thinks fit. 9F—Delegations (1) The Executive Board may delegate to the General Manager (and no other person) a power or function conferred under this or any other Act. (2) However, the following functions and powers must not be delegated: (a) this power of delegation; (b) the power to grant a lease or licence under this Act; (c) the power to grant a permit under this Act; (d) a function requiring that the Executive Board consult with Anangu Pitjantjatjara Yankunytjatjara or a specified group of Anangu. (3) A delegation under this section— (c) does not derogate from the power of the Executive Board to act in any matter; and (d) is revocable at will by the Executive Board. 10—Procedure of the Executive Board (1) The Chairperson must call a meeting of the Executive Board for the transaction of business at least once in every 2 months. (2) A quorum of the Executive Board consists of one half the total number of its members (ignoring any fraction resulting from the division) plus 1. (3) A meeting will be chaired by the Chairperson or, in his or her absence, by the Deputy Chairperson and, in the absence of both the Chairperson and the Deputy Chairperson, the members present at a meeting must choose 1 of their number to preside at the meeting. (4) Each member present at a meeting has 1 vote on any question arising for decision. (5) A conference by means of telephone link (including a satellite link) between the members will, for the purposes of this section, be taken to be a meeting of the Executive Board at which the participating members are present if— (a) notice of the conference is given to all members in the manner determined by the Executive Board for the purpose; and (b) each participating member is capable of communicating with every other participating member during the conference. (6) A decision carried by a majority of votes cast by members at a meeting is a decision of the Executive Board. (7) The Executive Board must have accurate minutes kept of its meetings. (8) Any Anangu is entitled to inspect (without charge) the minutes at the places on the lands, and during the times, nominated by the Executive Board and approved by the Minister. (9) Any Anangu is entitled, on payment of the fee prescribed by the regulations, to a copy of the minutes. (10) Subject to subsection (11), a member of the Executive Board may, by written instrument, appoint another member of the Executive Board to act as his or her proxy at a meeting specified in the instrument of appointment. (11) A member of the Executive Board appointed to act as a proxy for another member at a specified meeting may only so act if he or she— (a) is present at the specified meeting; and (b) exercises the proxy vote at the meeting in accordance with any instructions of the appointing member in the instrument of appointment. (12) A member of the Executive Board is not entitled to additional remuneration for acting as a proxy. (13) To avoid doubt, a proxy vote that is exercised other than in accordance with subsection (11) is void and of no effect. (14) Subject to this Act and the constitution, the Executive Board may determine its own procedures. (15) No act or proceeding of the Executive Board is invalid by reason only of a vacancy in the office of a member of the Executive Board, or any defect in the election or appointment of a person to the Executive Board. 11—Minister may call meetings (1) If— (a) the Chairperson refuses or fails to call a meeting of the Executive Board within 4 months after the previous meeting; or (b) 2 or more successive meetings are inquorate, then the Minister may call a meeting of the Executive Board. (2) The Minister may direct the members of the Executive Board to attend a meeting called under subsection (1). 12—Meetings to be open to all Anangu (1) Subject to subsection (2), a meeting of the Executive Board must be open to all Anangu. (2) The Executive Board may exclude Anangu, or a class of Anangu, who are not members of the Executive Board from a meeting, or part of a meeting, if, in the opinion of the Executive Board, there are reasonable grounds for so doing. (3) The grounds for excluding Anangu, or a class of Anangu, who are not members of the Executive Board from a meeting, or part of a meeting, must be recorded in the minutes of the meeting. 12A—Advisory committees (1) The Executive Board may establish advisory committees to provide advice in relation to any functions of the Executive Board under this Act. (2) The Executive Board must determine the following procedures of an advisory committee: (a) the conditions of appointment of the members of the advisory committee; and (b) the matter or matters on which the advisory committee is to advise; and (c) the manner in which the advisory committee is to report to the Executive Board; and (d) the date on or before which the advisory committee must provide a report to the Executive Board, and may determine any other procedures of an advisory committee. (3) A member of an advisory committee is entitled to remuneration, allowances and expenses determined by the Executive Board and approved by the Minister. (4) Subject to this Act, an advisory committee may determine its own procedures. 12B—Duty to exercise care and diligence (1) A member of the Executive Board must at all times exercise a reasonable degree of care and diligence in the performance of his or her functions. (2) A member of the Executive Board does not commit any breach of duty under this section by acting in accordance with a lawful resolution of Anangu Pitjantjatjara Yankunytjatjara. 12C—Duty to act honestly A member of the Executive Board must at all times act honestly in the performance of the functions of his or her office, whether within or outside the State. 12D—Duty with respect to conflict of interest (1) A member of the Executive Board who has a direct or indirect personal or pecuniary interest in a matter decided or under consideration by the Executive Board— (a) must, as soon as reasonably practicable, disclose to the Executive Board full and accurate details of the interest; and (b) must not take part in any discussion by the Executive Board relating to that matter; and (c) must not vote in relation to that matter; and (d) must be absent from the meeting room when any such discussion or voting is taking place. (2) If a member of the Executive Board makes a disclosure of interest and complies with the other requirements of subsection (1) in respect of a proposed contract— (a) the contract is not liable to be avoided by the Executive Board; and (b) the member is not liable to account to the Executive Board for profits derived from the contract. (3) If a member of the Executive Board fails to make a disclosure of interest or fails to comply with any other requirement of subsection (1) in respect of a proposed contract, the contract is liable to be avoided by the Executive Board. (4) A contract may not be avoided under subsection (3) if a person has acquired an interest in property the subject of the contract in good faith for valuable consideration and without notice of the contravention. (5) If a member of the Executive Board has or acquires a personal or pecuniary interest, or is or becomes the holder of an office, such that it is reasonably foreseeable that a conflict might arise with his or her duties as a member of the Executive Board, the member must, as soon as reasonably practicable, disclose to the Executive Board full and accurate details of the interest or office. (6) A disclosure under this section must be recorded in the minutes of the Executive Board. (7) If, in the opinion of the Executive Board, a particular interest or office of a member of the Executive Board is of such significance that the holding of the interest or office is not consistent with the proper discharge of the duties of the member, the Executive Board may require the member either to divest himself or herself of the interest or office or to resign from the Executive Board (and non-compliance with the requirement constitutes a failure to comply with a duty under this section and hence a ground for removal of the member from the Executive Board). (8) A member of the Executive Board is exempt from this section in respect of an interest in a matter— (a) while he or she remains unaware that he or she has an interest in the matter, but in any proceedings against the member the burden will lie on the member to prove that he or she was not, at the material time, aware of his or her interest; or (b) arising by reason of the fact that the member is a member of a community in an electorate to which the matter relates; or (c) that is shared in common with Anangu generally, or a substantial section of Anangu. 12E—Civil liability for contravention of section 12C or 12D If a person who is a member of the Executive Board or a former member of the Executive Board fails to comply with a duty under section 12C or 12D, Anangu Pitjantjatjara Yankunytjatjara may recover from the person by action in a court of competent jurisdiction— (a) if the person or any other person made a profit as a result of the failure—an amount equal to the profit; and (b) if Anangu Pitjantjatjara Yankunytjatjara suffered loss or damage as a result of the failure—compensation for the loss or damage. 12F—Code of conduct (1) The Executive Board must prepare a code of conduct to be observed by members of the Executive Board, the Director of Administration, the General Manager and any employees of Anangu Pitjantjatjara Yankunytjatjara. (2) The code of conduct must contain the following provisions: (a) a provision requiring that a person referred to in subsection (1) must not divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except— (i) as required or authorised by or under this Act or any other Act or law; or (ii) with the consent of the person to whom the information relates; or (iii) in connection with the administration of this Act; (b) a provision requiring that a person referred to in subsection (1) must not engage in bullying of, harassment of or threatening behaviour towards any Anangu or persons employed by Anangu Pitjantjatjara Yankunytjatjara, in the course of, or the purported course of, official duties; (c) a provision requiring that a person referred to in subsection (1) must declare any unsolicited gifts received by them in the course of, or related to, official duties; (d) any other provision prescribed by the regulations. (3) Subject to this Act, the Executive Board may at any time amend the code of conduct, or substitute a new code of conduct. (4) The code of conduct prepared, and any amendment or substitution under this section, must be presented to Anangu Pitjantjatjara Yankunytjatjara at the next general meeting for approval. (5) A person referred to in subsection (1) must comply with the approved code of conduct. (6) The Executive Board must, within 12 months after each election of the Executive Board, complete (and, as appropriate, implement) a review of its code of conduct under this section. (7) The code of conduct must not diminish a right under any Act or law. (8) A person is entitled to inspect (without charge) the code of conduct— (b) during ordinary office hours at the principal office of Anangu Pitjantjatjara Yankunytjatjara. (9) A person is entitled, on payment of the fee prescribed by the regulations, to a copy of the code of conduct. 12G—Guidelines (1) The Executive Board must, within 6 months after the commencement of this section, prepare and submit to the Minister for approval guidelines to be followed by the Executive Board and the General Manager when entering contracts or engaging in other commercial activities. (2) Subsection (1) does not apply in relation to a lease or licence granted under this Act. (3) A person is entitled to inspect (without charge) the guidelines— (b) during ordinary office hours at the principal office of Anangu Pitjantjatjara Yankunytjatjara. (4) A person is entitled, on payment of the fee prescribed by the regulations, to a copy of the guidelines. 12H—Prudential requirements for certain activities (1) The Executive Board must obtain and consider a report that addresses the prudential issues set out in subsection (2) before the Executive Board engages in any project (whether commercial or otherwise and including through participation in a joint venture, trust, partnership or other similar body) if the expected expenditure of Anangu Pitjantjatjara Yankunytjatjara in relation to the project is likely to exceed 20 per cent of Anangu Pitjantjatjara Yankunytjatjara's approved budget for the year during which the project would be undertaken. (2) The following are prudential issues for the purposes of subsection (1): (a) the relationship between the project and relevant strategic management plans (if any); (b) the level of consultation with Anangu, including contact with Anangu who may be affected by the project and the representations that have been made by them, and the means by which Anangu can influence or contribute to the project or its outcomes; (c) if the project is intended to produce revenue, revenue projections and potential financial risks; (d) the recurrent and whole-of-life costs associated with the project including any costs arising out of proposed financial arrangements; (e) the financial viability of the project, and the short and longer term estimated net effect of the project on the financial position of Anangu Pitjantjatjara Yankunytjatjara; (f) any risks associated with the project, and the steps that can be taken to manage, reduce or eliminate those risks (including by the provision of periodic reports to the Executive Board and the Minister); (g) the most appropriate mechanisms or arrangements for carrying out the project. (3) A report must be prepared by a person whom the Executive Board reasonably believes to be qualified to address the prudential issues set out in subsection (2). (4) A copy of the report must be provided to the Minister as soon as practicable after being received by the Executive Board. (5) Once the Executive Board has made a decision on the relevant project, a copy of the report must be made available for inspection (without charge) by Anangu— (b) during ordinary office hours at the principal office of Anangu Pitjantjatjara Yankunytjatjara, (and may also be made available at an earlier time). (6) However, the Executive Board may take steps to prevent the disclosure of specific information in order to protect its commercial value or to avoid disclosing the financial affairs of a person (other than Anangu Pitjantjatjara Yankunytjatjara). 13—Accounts and audit (1) The Executive Board shall cause proper accounts to be kept of the financial affairs of Anangu Pitjantjatjara Yankunytjatjara. (2) The Executive Board must cause the accounts of Anangu Pitjantjatjara Yankunytjatjara for each financial year to be audited by a registered company auditor. (3) The Auditor-General may audit the accounts of Anangu Pitjantjatjara Yankunytjatjara at any time. (4) The Executive Board must, at the annual general meeting of Anangu Pitjantjatjara Yankunytjatjara— (a) make copies of the audited accounts for the financial year ending on the preceding 30 June available to Anangu; and (b) provide an explanation of the audited accounts, or a part of the audited accounts, if requested by any Anangu. 13A—Reports and budget (1) The Executive Board must, not later than 31 December in each year, prepare and submit to the Minister an annual report on the operations of the Executive Board during the financial year ending on the preceding 30 June (and must provide a copy of the audited accounts for that financial year with the annual report). (2) The Executive Board must, not later than the prescribed day in each year, prepare and submit to the Minister for approval a budget setting out estimates of the Executive Board's proposed expenditure for the next financial year or for some other period determined by the Minister. (3) The Minister may, if he or she is satisfied that the Executive Board has refused or failed to perform or discharge a function or duty under this Act, by notice in writing, direct the Executive Board to prepare a report on the matter. (4) A report or budget (as the case requires) under this section must— (a) in the case of an annual report under subsection (1) or a budget under subsection (2)—contain the information required by the regulations; and (b) in the case of a report required under subsection (3)—contain the information, and be delivered to the Minister on or before the date, specified in the notice; and (c) in any case—be in a form determined by the Minister. (5) The Executive Board must, at an annual general meeting of Anangu Pitjantjatjara Yankunytjatjara— (a) make available to Anangu copies of the annual report for the financial year ending on the preceding 30 June; and (b) if requested by any Anangu, provide an explanation of the annual report, or a part of the annual report. (6) The Minister must determine to approve, or not approve, a budget within 28 days after receiving the proposed budget, and may, in determining whether to approve the budget, take into consideration any matter the Minister thinks fit.