Institute of Sport Act 1995

The Act defines several key concepts. The Institute is the New South Wales Institute of Sport, constituted as a body corporate and a statutory body representing the Crown (s 4). The Board is the Board of the Institute, comprising no fewer than five and no more than eight people with relevant expertise appointed by the Minister, plus the Chief Executive of the Office of Sport or a nominee (s 6(2)). One appointed member is designated Chairperson and another Deputy Chairperson (s 6(3)). The chief executive officer is the person employed in the Public Service as the chief executive officer of the Institute (s 3, definition); that officer is responsible for day-to-day management subject to Board policies and Ministerial direction, and acts done in the name of or on behalf of the Institute by the CEO are taken to have been done by the Institute (s 17(3),(4)). The Fund is the New South Wales Institute of Sport Fund established under the Act (s 22), into which all money received by the Institute is paid (s 23) and from which authorised payments are made (s 24). The concept of function is defined inclusively to include a power, authority or duty, and exercise a function includes perform a duty (s 3). This broad definition ensures that references to functions in the Act encompass all governmental activities of the Institute. The objects of the Institute are set out in s 5 and focus on providing resources and services to enable NSW sportspeople to pursue excellence in sport while furthering educational, vocational and personal development, fostering high performance and talent development programs, and assisting Australian international sporting performance through co-operative national programs. The Act introduces a corporate plan mechanism (s 10) under which the Board must prepare a draft plan at least three months before each financial year, deliver it to the Minister, consider any comments within two months, and deliver the completed plan before the beginning of the financial year. The plan must specify objectives, strategies, policies, budgets, and performance targets and criteria (s 10(4)). The Institute is bound, as far as practicable, to exercise its functions in accordance with the plan (s 10(3)). The concept of delegation appears in s 15: the Institute may delegate functions (other than the power of delegation itself) to an authorised person, being a member of staff or a person of a class prescribed by the regulations or approved by the Minister. A delegate may sub-delegate if authorised in writing by the Institute (s 15(2)). The Act also provides for committees of the Board, which may include non-members (s 9). Schedules 1 and 2 govern membership and procedure of the Board, including terms of office (maximum five years for appointed members), remuneration determined by the Minister, vacation of office, disclosure of pecuniary interests, and meeting procedures.

The Act primarily affects the New South Wales Institute of Sport itself as the statutory body constituted by the Act. NSW sportspeople are the ultimate beneficiaries of the Institute's objects and functions: they are the target of programs, scholarships, resources, services and facilities designed to help them pursue excellence in sport while furthering educational, vocational and personal development (s 5(a)). Coaches are also affected, as the Institute may devise and implement programs for their development (s 11(2)(a)). The Board members (appointed members and the Office of Sport representative) are directly affected by the Act: they have duties to determine policies and strategic plans (s 7), to report to the Minister (s 8), to prepare corporate plans (s 10), and to comply with the disclosure and meeting requirements in Schedule 1. They are also protected from personal liability when acting in good faith (s 27). The chief executive officer is affected as the day-to-day manager of the Institute, subject to Board policies and Ministerial direction (s 17(3)), and as the custodian of the Institute's seal (s 29). Staff of the Institute are employed under the Government Sector Employment Act 2013 (s 17A) and may be subject to regulations about conditions and discipline (s 18). The Minister exercises control and direction over the Institute (s 16), appoints Board members (s 6(2)), receives corporate plans and comments (s 10), may remove appointed members at any time (Sch 1 cl 5(2)), and determines remuneration for members and deputies (Sch 1 cls 2(4), 4). The Office of Sport (previously named authorities) is affected through its Chief Executive being a Board member (s 6(2)(b)). Commercial sponsors, partners and other organisations are affected by the Institute's power to obtain commercial sponsorship, enter marketing and commercial arrangements, and provide goods and services (s 20). Other States and Territories are affected as the Institute may provide access to its resources to persons from other jurisdictions and enter into agreements with other authorities (s 13). Persons using Institute facilities are affected by the power to charge fees for access or use (s 20(d)). Finally, the Crown is bound by the Act (s 31), meaning that the Act applies to the State of New South Wales and, to the extent of legislative power, the Crown in all other capacities.

The Act imposes duties and confers rights on the Institute, the Board, its members, the chief executive officer and staff. The Board has the duty to determine the policies and strategic plans of the Institute (s 7). It must give the Minister any requested information about the exercise of its functions (s 8). The Board must prepare and deliver a draft corporate plan to the Minister at least three months before the beginning of each financial year, consider any Ministerial comments made within two months, and deliver the completed corporate plan before the beginning of the financial year (s 10(1),(2)). The Board may establish committees and determine their membership (s 9). Board members have a duty to disclose any direct or indirect pecuniary interest in a matter being considered that appears to raise a conflict with the proper performance of their duties; they must disclose the nature of the interest as soon as possible after the relevant facts come to their knowledge (Sch 1 cl 6(1)). A standing disclosure may be made for interests in companies or persons (Sch 1 cl 6(2)). After disclosure, the member must not be present during deliberations or take part in any decision on the matter unless the Minister or the Board otherwise determines (Sch 1 cl 6(4)). Importantly, a contravention of this disclosure clause does not invalidate any decision of the Board (Sch 1 cl 6(6)). Members have the right to be paid such remuneration (including travelling and subsistence allowances) as the Minister determines (Sch 1 cl 4). Deputies acting in the place of a member are entitled to similar remuneration (Sch 1 cl 2(4)). The chief executive officer has the duty of day-to-day management of the Institute subject to Board policies and Ministerial direction (s 17(3)). Any act, matter or thing done in the name of or on behalf of the Institute by the CEO is taken to have been done by the Institute (s 17(4)). The CEO must keep the Institute's seal and ensure it is affixed only in the presence of the CEO or an authorised staff member and attested by signature (s 29). The Institute has the right to do all things necessary for carrying out its objects (s 14(1)), including entering contracts, acquiring and developing land, occupying and controlling land or buildings made available, erecting buildings, appointing agents, and acting as agent (s 14(2)). It may delegate functions to authorised persons (s 15(1)) and authorise sub-delegation in writing (s 15(2)). Financially, the Institute may obtain commercial sponsorship, participate in marketing endorsement of products, arrange manufacture and distribution of Institute-branded articles, provide goods and services, charge reasonable fees for access or use of its resources, and borrow money under the Government Sector Finance Act 2018 (s 20). It may accept gifts, devises or bequests, even subject to conditions (s 21(2)), and the rule against perpetuities does not apply to any such condition (s 21(3)). The Institute may invest money in the Fund in accordance with the Government Sector Finance Act 2018 or, if not a GSF agency, under the Trustee Act 1925 with approval (s 25). Persons acting in good faith for the purpose of executing the Act (including the Institute, staff, Board members, committee members, and persons acting under direction) are not personally subject to any action, liability, claim or demand (s 27). Charges, fees or money due to the Institute may be recovered as a debt in a court of competent jurisdiction (s 30).

The Institute of Sport Act 1995 does not create criminal offences or impose fines. Instead, enforcement mechanisms are civil and administrative. The primary enforcement provision is s 30, which provides that any charge, fee or money due to the Institute may be recovered as a debt in a court of competent jurisdiction. This allows the Institute to sue for unpaid fees for access to resources, facilities, programs or services (s 20(d)), or for any other money lawfully owing. The Act includes a personal liability shield: a matter or thing done or omitted in good faith for the purpose of executing the Act by the Institute, a member of staff, the Board or a committee, a member of the Board or committee, or any person acting under direction, does not subject that person personally to any action, liability, claim or demand (s 27). This protects individuals from personal civil liability for acts done in the course of their duties, provided they acted in good faith. There is no equivalent protection for the Institute itself; s 27 only protects individuals. Vacancy of office of an appointed member can occur if the member is convicted in NSW of an offence punishable by imprisonment for 12 months or more, or elsewhere of an equivalent offence (Sch 1 cl 5(1)(h)). That provision functions as a de facto penalty for serious criminal conduct, but it does not impose a penalty under this Act; it merely triggers removal from office. The Minister may also remove an appointed member at any time, without cause (Sch 1 cl 5(2)), which is a form of administrative discipline. Clause 6 of Schedule 1 requires disclosure of pecuniary interests, but subclause (6) expressly states that a contravention of the clause does not invalidate any decision of the Board. So non-disclosure does not cause the decision to be void, though it may expose the member to removal by the Minister or other consequences under other laws (such as misconduct proceedings if the member is a public official). The regulations (s 32) may create additional enforcement mechanisms, but the Act itself does not prescribe penalties for non-compliance with the corporate plan requirement or other duties. The Government Sector Employment Act 2013 governs discipline of staff. The Act makes no provision for infringement notices, penalties units, or criminal sanctions.

The Institute of Sport Act 1995 expressly and implicitly interacts with several other enactments. Section 17A provides that persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Institute to exercise its functions. The note to s 17A cross-references s 59 of that Act (allowing staff to be referred to as officers or employees of the Institute) and s 47A of the Constitution Act 1902, which precludes the Institute from employing staff directly. This means all staff are public servants subject to the Government Sector Employment regime. Section 8 of Schedule 1 provides that the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to appointed Board members. Financial interactions are significant. Section 20(e) allows the Institute to borrow money in accordance with Part 6 of the Government Sector Finance Act 2018. Section 25 provides that the Institute may invest money in the Fund if it is a GSF agency under Part 6 of that Act; if not, investment must be under the Trustee Act 1925 with Ministerial and Treasurer approval. Section 26 allows the financial year to be the annual reporting period if the Treasurer makes a determination under s 2.10 of the Government Sector Finance Act 2018. The Act also interacts with the Statute Law (Miscellaneous Provisions) Act (No 2) 2010, which amended s 6 and inserted savings provisions in Schedule 2 Part 1 preserving the tenure of appointed members at the time of amendment. Section 31 provides that the Act binds the Crown in right of New South Wales and, so far as legislative power permits, the Crown in all other capacities. This means the Act applies to state and federal Crown entities. Section 27 provides personal liability protection for acts done in good faith; this protection does not override any other Act that may impose liability, but it is a common form provision found in many NSW statutory body Acts. The Act also interacts with the Interpretation Act 1987 (NSW) in terms of definitional and procedural matters, although that is not stated explicitly. Section 30 (recovery of money as a debt) interacts with the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules for enforcement. Section 21(3) disapplies the rule of law relating to perpetuities for conditions attached to gifts, devises or bequests accepted by the Institute. This overrides the common law rule that would otherwise limit the duration of such conditions. The Act also acknowledges that the regulations may prescribe matters for carrying out or giving effect to the Act (s 32), and those regulations may interact with other regulatory schemes.

The Act has been amended on multiple occasions. Section 3 (definitions) was amended by 2003 No 46, Sch 1 [1] (which inserted or amended definitions, notably adding the definition of chief executive officer and revising others); 2006 No 2, Sch 4.29 [1]; 2007 No 27, Sch 2.28; and 2015 No 58, Sch 3.53 [1]. Section 6 (establishment of Board) was amended by 1998 No 120, Sch 1.24 [1]; 2009 No 96, Sch 10 [1]; 2010 No 119, Sch 1.19 [1]; and 2015 No 58, Sch 3.53 [2] (which updated references to the Office of Sport). Section 14 (powers of Institute) was amended by 2006 No 2, Sch 4.29 [2]; and 2015 No 58, Sch 3.53 [3] (which repealed subsection (4)). Section 17 (chief executive officer) was substituted by 2003 No 46, Sch 1 [2], replacing earlier provisions with the current CEO framework; and amended by 2006 No 2, Sch 4.29 [3]. Section 17A (staff) was inserted by 2015 No 58, Sch 3.53 [4], replacing earlier staff provisions with the current Government Sector Employment Act 2013 model. Section 18 (regulations relating to certain staff) was substituted by 2003 No 46, Sch 1 [3] and 2006 No 2, Sch 4.29 [4]; and amended by 2015 No 58, Sch 3.53 [5]. Section 19 was repealed by 2003 No 46, Sch 1 [4]. Section 20 (financial powers) was amended by 2018 No 70, Sch 3.34 [1], which updated the borrowing power to refer to the Government Sector Finance Act 2018. Section 24 (payments from Fund) was amended by 2003 No 46, Sch 1 [5]. Section 25 (powers of investment) was substituted by 2018 No 70, Sch 3.34 [2], providing a dual regime depending on whether the Institute is a GSF agency. Section 26 (financial year) was amended by 2018 No 70, Sch 4.56. Section 27 (personal liability) was substituted by 2003 No 46, Sch 1 [6]. Section 29 (seal) was amended by 2003 No 46, Sch 1 [7]. Sections 33 and 34 were repealed by 1999 No 85, Sch 4 and 2010 No 119, Sch 1.19 [2] respectively. Schedule 1 has been amended by 1998 No 120, Sch 1.24 [2]; 1999 No 94, s 7(2) and Sch 5 Pt 2; 2009 No 96, Sch 10 [2]; 2010 No 119, Sch 1.19 [4]-[6]; and 2015 No 58, Sch 3.53 [6][7]. Schedule 2 was originally repealed by 1999 No 85, Sch 4 and re-inserted by 2010 No 119, Sch 1.19 [7].

The Act does not cite any litigation history, and the text itself contains no references to specific court cases. The personal liability protection in s 27 and the debt recovery mechanism in s 30 are standard provisions that may have been considered in general administrative law or debt recovery proceedings, but the Act itself provides no guidance on reported decisions. The disclosure of pecuniary interests provision (Sch 1 cl 6) is similar to those in many NSW statutory boards; while no cases are mentioned, it is possible that decisions of the Board could be challenged on grounds of bias if a member failed to disclose an interest, though cl 6(6) provides that contravention does not invalidate a decision. The provision that the Institute is a statutory body representing the Crown (s 4(2)) may have implications for Crown immunity in litigation, though the Act binds the Crown (s 31). The interaction with the Government Sector Employment Act 2013 and the Constitution Act 1902 may have generated case law on the status of staff, but that is not part of this Act. The Minister's power to remove an appointed member at any time (Sch 1 cl 5(2)) could be subject to judicial review on grounds of procedural fairness, but the Act does not address that. The corporate plan provisions (s 10) do not create private rights, so litigation by third parties (e.g., athletes) about the Institute's failure to follow its corporate plan would likely be difficult. Overall, the Act appears designed to create a governance framework without creating many directly enforceable rights, which may explain the lack of cited litigation.

Several provisions of the Act contain traps for the unwary. First, absence from four consecutive meetings automatically vacates the office of an appointed member unless the member is excused by the Board or on leave (Sch 1 cl 5(1)(e)). The provision counts meetings of which reasonable notice was given to the member personally or in the ordinary course of post. A member who misses four meetings without seeking leave or obtaining a Board excuse within four weeks after the last of those meetings loses their position. Second, the disclosure of pecuniary interests obligation (Sch 1 cl 6) requires a member to disclose any direct or indirect pecuniary interest that appears to raise a conflict. The member must not be present during deliberations or vote unless the Minister or the Board determines otherwise (Sch 1 cl 6(4)). However, a contravention does not invalidate any decision of the Board (Sch 1 cl 6(6)). This means that even if a member fails to disclose or improperly participates, the decision stands. The only real consequence is potential removal by the Minister or reputational damage. Third, the corporate plan must be delivered at least three months before the beginning of each financial year (s 10(1)). The Board must consider Ministerial comments within two months, and deliver the completed plan before the beginning of the financial year (s 10(2)(b)). If the plan is late, the Institute is still bound to exercise its functions in accordance with the plan as far as practicable (s 10(3)), but a failure to deliver on time could be a breach of duty. Fourth, the personal liability protection (s 27) only applies if the matter or thing was done or omitted in good faith for the purpose of executing the Act. There is no protection for bad faith, fraud, or actions outside the scope of the Act. Fifth, the seal of the Institute must be kept by the chief executive officer and affixed only in the presence of the CEO or an authorised staff member, with an attestation by the signature of that person (s 29). A failure to follow this procedure could affect the validity of executed documents. Sixth, delegations under s 15: the Institute may delegate to an authorised person, and a delegate may sub-delegate only if authorised in writing by the Institute (s 15(2)). If sub-delegation occurs without written authorisation, the sub-delegate's acts may be invalid. Seventh, the Board quorum is a majority of the members for the time being (Sch 1 cl 10). If there are vacancies, the quorum may be very low, which could lead to decisions being made with minimal input. Eighth, the Minister may remove an appointed member at any time (Sch 1 cl 5(2)) without cause. This gives the Minister significant control, and members should be aware that their tenure is at the Minister's pleasure. Ninth, the Institute is subject to the control and direction of the Minister (s 16), meaning that despite the Board's policy role, the Minister can override decisions. Tenth, the Act binds the Crown (s 31), but this does not necessarily mean that the Institute is immune from suit; it means the Crown is subject to the Act.

Compliance with the Institute of Sport Act 1995 requires attention to both governance and operational obligations. For the Board, compliance begins with the proper constitution of the Board: the Minister must appoint between five and eight people with relevant expertise, plus the Chief Executive of the Office of Sport or a nominee (s 6(2)). The Board must hold meetings, and ensure a quorum of a majority of members for the time being is present (Sch 1 cl 10). Decisions are made by a majority of votes cast, with the presiding member having a deliberative and casting vote (Sch 1 cl 12). The Board must determine its own procedure for calling meetings and conducting business, subject to the Act and regulations (Sch 1 cl 9). The Board must determine the policies and strategic plans of the Institute (s 7) and give the Minister any requested information (s 8). The Board must prepare a draft corporate plan at least three months before each financial year, deliver it to the Minister, consider comments within two months, and deliver the completed plan before the financial year begins (s 10(1),(2)). The plan must specify objectives, strategies, policies, budgets, and performance targets (s 10(4)). The Institute must then exercise its functions as far as practicable in accordance with the plan (s 10(3)). Board members must comply with the disclosure of pecuniary interests clause: they must disclose any interest that appears to raise a conflict, as soon as possible after the relevant facts come to their knowledge (Sch 1 cl 6(1),(2)). The Board must keep a book recording disclosures, available for inspection on payment of a fee (Sch 1 cl 6(3)). After disclosure, the member must not be present or vote on the matter unless the Minister or Board otherwise determines (Sch 1 cl 6(4)). Members must attend meetings regularly to avoid automatic vacancy after four consecutive absences (Sch 1 cl 5(1)(e)). The chief executive officer must manage the day-to-day operations of the Institute in accordance with Board policies and Ministerial direction (s 17(3)) and must keep and properly use the Institute's seal (s 29). Staff are employed under the Government Sector Employment Act 2013 (s 17A) and must comply with that Act and any regulations made under s 18. The Institute must ensure that all money received is paid into the New South Wales Institute of Sport Fund (s 23) and that payments from the Fund are only for the purposes authorised by s 24 (remuneration, payments on account of the Institute, and other required payments). Borrowing must be in accordance with Part 6 of the Government Sector Finance Act 2018 (s 20(e)) and investment in accordance with that Part or, if not a GSF agency, under the Trustee Act 1925 with approval (s 25). The Institute may accept gifts and bequests (s 21) but should document conditions. For contractual dealings, the Institute should ensure that any document requiring the seal is executed in the presence of the CEO or an authorised staff member and attested (s 29). Service of documents on the Institute may be effected by leaving or posting to an office of the Institute (s 28). Finally, the Institute must comply with any directions from the Minister (s 16) and any regulations made under s 32.