LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR EDUCATION AND TRAINING

BATCHELOR INSTITUTE OF INDIGENOUS TERTIARY EDUCATION AMENDMENT BILL 2011 
SERIAL NO. 192

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Batchelor Institute of Indigenous Tertiary Education Act (Act).

The purpose of the Bill is to enhance the efficiency and productivity of the Batchelor Institute of Indigenous Tertiary Education (the Institute) and to thereby improve services to Indigenous students seeking training, higher education and improved employment outcomes. 

The Bill will also better implement the Australian Government National Governance Protocols for higher education Institutions.

Broadly, the Bill:

·	brings the Institute Council (Council) more in line with comparable higher education governing 		bodies in other jurisdictions by reducing its size from 22 members to 10 members
·	reforms the governance provisions for the Council
·	establishes an Advisory Board (Board) of suitably experienced and qualified Indigenous 			Territorians to advise the Council
·	establishes a Nominations Committee to advise the Minister in relation to membership of the 		Council and the Board
·	effects a range of Statute Law Revision amendments to modernise terminology in the remainder 	of the Act.

NOTES ON CLAUSES

Part 1		Preliminary matters

Clause 1	Short title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Batchelor Institute of Indigenous Tertiary Education Amendment Act 2011.

Clause 2	Commencement

This clause provides that the Act will commence on a day fixed by the Administrator by notice in the Gazette.

Part 2		Amendment of Batchelor Institute of Indigenous Tertiary Education Act 

Clause 3	Act Amended

This clause provides that the Bill amends the Batchelor Institute of Indigenous Tertiary Education Act (the Act).

Clause 4	Section 3 amended

Clause 4 amends section 3 of the Act, Interpretation, which defines terms used in the Act. 

Subclause (1) omits the words, ‘unless the contrary intention appears’ from current section 3(1) of the Act in order to modernise the terminology.

Subclause (2) omits definitions in current section 3(1) of the Act which are made redundant by the Bill - : Chairperson, Deputy Chairperson, member, committee, first council, Torres Strait Islander. 

Subclause (3) provides the following new definitions relevant to the Act as a whole:

Board means the Institute Advisory Board established by
section 24.
CDU Council means the Council of Charles Darwin University.
Council committee means the Nominations Committee or a
committee established under section 23.
Education Agency means the Agency with primary responsibility
for the administration of the Education Act.
entity includes Institute entity.
indigenous people means people who are Aboriginal or Torres
Strait Islanders;
Institute entity means the Council, a Council committee or the
Board.
Nominations Committee means the committee
established by section 22(1).
northern region of the Territory means the area of the Territory
above the 17th parallel of south latitude (which lies approximately
61 km north of Elliott).
southern region of the Territory means the area of the Territory
below the 17th parallel of south latitude (which lies approximately
61 km north of Elliott)

The following subclauses amend the current definitions under 3(1) as follows: 

Subclause (4) omits ‘Part VI’ under the definition Batchelor College and replaced it with ‘Part 6’ in line with the modern drafting practice. 

Subclause (5) modernises and amends the definition of Council by omitting the words, ‘constituted under Division 1 of Part 3’ and inserting, ‘established by section 10’.

Subclause (6) modernises the definition graduate by omitting the words ‘the purposes of’. 

Subclause (7) modernises the definition of Institute by omitting the word ‘under’ and insert the word ‘by’.

Subclause (8) amends current section 3(2) of the Act by broadening the definition of:

(a)	the Chairperson of an Institute entity includes a reference to a member of the Institute entity acting in or performing the duties of the Chairperson; and
(b)	 the Director includes a reference to the Deputy Director acting as, or performing the functions of, the Director as mentioned in section 28(3). 

Subclause (9) similarly amends current section 3(3) of the Act by inserting the words ‘of an Institute entity’ before the word ‘includes’ to enable section 3(3) to apply to the new concept of an Institute entity.

Subclause (10) omits from 3(3)(b) ‘section 19’ and replace with ‘section 17(1)’ to reflect the change in the numbering in current section 3 of the Act. 

Clause 5	Part 3 replaced

Rather than extensively amending Part 3 of the Act to accommodate the amendments, clause 5 of the Bill repeals the current Part 3 and inserts a new Part 3, Administration of Institute. 

Part 3		Administration of Institute

Division 1	Council

Proposed section 9	Establishment of Council

This section provides for the establishment of the Institute Council to conduct the affairs of the Institute. 

Proposed section 10	Functions and powers of Council

The Act does not currently provide specified functions of the Council and this section rectifies that by expressly stating the functions of the Council.

Subsection (1) provides that the functions of the Council are to:

(a)	approve the mission and strategic direction of the Institute, and,
(b)	oversee and monitor the academic activities of the Institute, and,
(c)	establish policy and procedural principles consistent with legal requirements and community expectations, and,
(d)	oversee the management of the Institute, including by;
(i)	reviewing the management practices and performances; and,
(ii)	reviewing and monitoring the performance of the Director; and,
(iii)	approving the budget and business plan; and,
(iv)	approving significant commercial activities and assessing risk arising from those activities; and,
(e)	monitor systems of accountability implemented by the Institute; and,
(f)	oversee and monitor the assessment and management of risk across the Institute; and,
(g)	establish a system for dealing with grievances of students and staff publish details of the system and the procedures to be followed; and,
(h)	regularly review delegations under this Act. 

Subsection (2) provides that the Council has the powers necessary to perform its functions.

Subsection (3) provides that the Institute is taken to have done an act or a thing if the act or thing is done by (a) the Council or (b) a person or entity in the name of or on behalf of the Institute with the express or implied authority of the Council.

Proposed section 11	Composition of Council

This section establishes the composition of the new Council of 10 members.

Subsection (1) provides that the Council shall consist of:

(a)	a Chairperson appointed by the Administrator on the nomination of the Minister; and
(b)	4 persons appointed as members by the Administrator on the nomination of the Minister; and
(c)	one person appointed as member by the Administrator on the nomination of the Charles Darwin University Council; and
(d)	one person from the full-time staff (except the Director or Deputy Director) elected by the full-time staff and declared to be a member by the Administrator; and
(e)	one student whose usual place of residence is the NT elected by the students and declared to be a member by the Administrator; and
(f)	the Director; 
(g)	the Chief Executive Officer of the Education Agency or the Chief Executive Officer’s nominee.

Subsection (2) provides that if possible the person nominated for appointment as the Chairperson of the Council should be an Indigenous person and that the Chairperson cannot be a member of the staff or a student.

Subsection (3) provides that of the persons appointed as members of the Council by the Administrator on the nomination of the Minister:
(a)	one must be an Indigenous person with experience advising government or other service providers about Indigenous matters
(b)	one must have specialist professional or vocational knowledge about, or expertise in, delivering education and training, preferably to Indigenous people in remote Australia
(c)	one must have demonstrated commercial and financial expertise and experience; and,
(d)	one must have experience, knowledge or expertise, not mentioned in paragraphs (a) to (c), that is appropriate for the effective exercise of powers and performance of functions as a member; and
(e)	at least one must usually reside in the northern region of the Territory; and
(f)	at least one must usually reside in southern region of the Territory

Note:  The member in 3(a) is also the chair of the Advisory Board.

Subsection (4) provides that a person who is appointed as a member of the Board under section 24B(1)(b) must not also be appointed as a member of the Council.

Subsection (5) provides that, subject to subsection (6), a person may be re-appointed or re-elected as a member of the Council.

Subsection (6) provides that members appointed or elected to the Council cannot be re-appointed or re-elected as a member of Council for a continuous period of more than 12 years.

Proposed section 12	Notice relating to nomination of Council members

Subsection (1) provides that for persons to be appointed to the Council under section 11(1)(a) or (b) the Director must give public notice that the Minister is seeking expressions of interest from persons for nomination for the appointment.

Subsection (2) provides that the Director must publish the notice referred to in subsection (1) in one or more newspapers circulating throughout the Territory and in any other way the Director considers will give notice to persons who are eligible for appointment.

Subsection (3) provides that a published notice must include stated information about:

(a)	the way and date by which a person may make an expression of interest; 
(b)	the eligibility for appointment; and
(c)	other information the Director considers appropriate.

Subsection (4) provides that the Institute Director shall give a notice to the CDU Council for the appointment under 11(1)(c); this notice must include a request for the CDU Council to nominate a person for the appointment to the Council; state the date by which the nomination is to be made and include any other information the Director considers appropriate. The nomination must be in writing and given to the Nominations Committee.

Proposed section 13	Request for election of Council member

This section provides for the election of the student member and the staff member to the Council.

Subsection (1) provides that the Director must ask the full-time members of the BIITE staff to elect from themselves a staff member, other than the Director or the Deputy Director, to be a member of Council.

Subsection (2) provides that the Director must request the students of BIITE to elect a student whose usual place of residence is the Territory to be a member of Council.

Subsection (3) provides that the requests to elect members to the Council must: 

(a)	be in writing; 
(b)	be made available to the staff and students in a manner the Director considers appropriate; 
(c)	specify the person to whom and the date by which notice of the result of an election is to be given; and 
(d)	include any other information as the Director considers appropriate.

Proposed section 14	Appointment of Council member on failure to nominate or elect

This section provides for the nomination of a person to the Council where there is a failure to nominate or elect a person to Council. 

Subsection (1) applies if there is a failure to nominate a person for appointment as a member of the Council under section 11(1)(a), (b) or (c) or if there is failure to elect a person to Council after a request has been made under section 13.

Subsection (2) provides that the vacant office on the Council must be filled by a person appointed by the Administrator on the recommendation of the Minister.

Subsection (3) provides that the person recommended for appointment must have the same eligibility as is specified under section 11 for appointment or election to the office.

Subsection (4) provides that a person appointed as a member of the Council under subsection (2) is taken to be a member appointed, or elected and declared, as mentioned in section 11.

Proposed section 15	Term of office of appointed or elected Council member

This section establishes the term of office for the members of the Council.

Subsection (1) provides that the Chairman holds office for three years.

Subsection (2) provides that other members of the Council appointed by the Administrator will hold office for a period not exceeding three years as specified in the instrument of appointment.

Subsection (3) provides that the elected staff and student member of Council holds office for one year.

Subsection (4) provides that a person takes office as a member of the Council either on the date of the instrument which appoints or declares them to be a member, or, on a later date where a later date is specified in the instrument appointing or declaring them to be a member.

Proposed section 16	Vacation of office of Council member

This section sets out the circumstances in which a member of the Council is taken to have vacated their membership of the Council.

A member vacates their office if:

(a)	the term of office expires
(b)	the member gives the Director a signed notice of resignation
(c)	the member ceases to meet the eligibility requirements for holding office
(d)	the member is absent from 3 consecutive meetings of the Council of which the member has been given notice and the Council has not approved the absences
(e)	the Council resolves that the office is vacated because:
(i)	at least two-thirds of all of the other Council members agree at a meeting that the member has not complied with the duties of a member as set out is section 25 of the Act
(ii)	the Council is satisfied that the member has knowingly contravened a code of conduct applicable to a member;
(iii)	the Council is satisfied that the member is of unsound mind;
(f)	the member is found guilty by a court in the Territory of an offence punishable by imprisonment for 12 months or more, or, by a court outside the Territory where if the offence was committed in the Territory would be punishable by imprisonment for 12 months or more
(g)	the member becomes bankrupt or applies to take the benefits of a law for the relief of bankrupt or insolvent debtors etc
(h)	the member is disqualified from acting as a director of a company or managing a corporation under the Corporations Act.

Proposed section 17	Filling vacancy of elected Council member for less than 6 months

Subsection (1) provides that if an elected member of the Council vacates the member’s office and there is less than 6 months of the term remaining, the Council must appoint a person to fill the vacancy for the remainder of the term.

Subsection (2) provides that the person appointed by the Council to fill the vacancy (a) must have the same eligibility for membership of the Council as the vacating member; and (b) is taken to be an elected member of Council as mentioned in section 11(1)(d) or (e).

Subsection (3) provides that an elected member means a person elected pursuant to sections 11(1)(d) or (e).

Proposed section 18	Council to elect Deputy Chairperson

This section provides for the Council to elect a Deputy Chairperson of the Council.

Subsection (1) provides that the Council must elect its Deputy Chairperson at its first meeting in each calendar year.

Subsection(2) provides that a member of staff or a student cannot be elected as the Deputy Chairperson.

Subsection (3) provides that a member may be re-elected as the Deputy Chairperson.

Subsection (4) provides that the term of office of the Deputy Chairperson is from the date of their election until the date of the election of a new Deputy Chairperson at the first Council meeting the following year.

Subsection (5) provides that the Deputy Chairperson holds office until (a) the expiry of their term of office or (b) the member resigns in writing or (c) the member becomes a staff member or a student or (d) the member vacates their office on the Council.

Subsection (6) provides that if there is a casual vacancy in office of Deputy Chairperson then the Council must elect a new Deputy Chairperson for the remainder of the term of office.

Subsection (7) provides that the Deputy Chairperson must act in the office of Chairperson if (a) the Chairperson is for any reason unable to perform those functions or duties or (b) there is a vacancy in the office of Chairperson.

Proposed section 19	Council meetings

This section establishes the requirements for Council meetings.

Subsection (1) provides that the Council must hold at least 4 meetings per calendar year and that there must not be an interval of greater than 4 months between meetings.

Subsection (2) provides that the Chairperson must call meetings of the Council.

Subsection (3) provides that at least one half of the members may request that the Chairperson call a meeting. 

Subsection (4) provides that the request under subsection (3) must (a) be in writing and signed by all the members requesting the meeting; and (b) specify the matter(s) proposed for deliberation at the meeting. 

Subsection (5)(a) provides that the Chairperson must call the meeting within 21 days after receiving the request under subsection (3).

Subsection (5)(b) requires that the meeting be held within 30 days after the date on which it is called.

Subsection (5)(c) allows for only those matters specified in the request may be deliberated at the meeting.

Subsection (6)(a) provides that (i) the Chairperson is the presiding member at meetings of the Council and (ii) in the absence of the Chairperson, the Deputy Chairperson will preside and (iii) in the absence of the Chairperson and the Deputy Chairperson, the members will elect one of them to chair that meeting.

Subsection (6)(b) provides that a quorum of the Council is one-half of the number of members currently holding office.

Subsection (6)(c) provides that each member of Council has one vote.

Subsection (6)(d) provides that matters are decided by a majority of votes and where there is an equal number of votes then the presiding member has the casting vote.

Subsection (6)(e) provides that, subject to the Act and By-laws, the Council may decide its meeting procedures.

Subsection (7) provides that the Director must not be present at the deliberations of the Council relating to the Director's performance or the terms and conditions of the Director's appointment.

Subsection (8) provides for the Council to pass a resolution to have the Director present at deliberations mentioned in subsection (7), but only after deliberating and voting on the matter in the Director's absence.

Proposed section 20	Council program of induction and professional development

This is a new provision which makes Council responsible for a program of induction and professional development for its members. This is a Protocol 4 requirement under the National Protocols and accordingly:

Subsection (1) provides that the Council must prepare, and give each of its members, a program of induction and professional development.

Subsection (2) specifies that the program must include (a) information about the duties and responsibilities of the members; and (b) provisions that will assist in increasing the expertise of the members in carrying out their duties.

Subsection (3) provides that the Council must review the program at regular intervals not exceeding 2 years and make appropriate amendments.

Proposed section 21	Delegation by Council

This section modernises and amends the provisions about delegations in keeping with section 46A of the Interpretation Act. 

Subsection (1) provides the authority for Council to delegate any of its powers and functions to a person or an entity.

Subsection (2) excludes the Council's from delegating any of its powers and functions to make by-laws, rules or a code of conduct in relation to subsection (1).

Subsection (3) provides that if the Council delegates a power or function to a member of the staff it must also delegate the power or function to the Director.

Subsection (4) provides that if the Council delegates a power or function to a Council committee, or another entity, and there is a change in the membership of the committee or entity, the delegation continues in force for the newly constituted committee or entity until the Council revokes or varies the delegation.

Division 2	Council committees

Proposed section 22	Nominations Committee

This new provision which provides for the establishment and operation of the Nominations Committee.

Subsection (1) establishes that the Nominations Committee.

Subsection (2) provides for the composition of the Nominations Committee to consist of four members of the Council: 

(a)	the Chairperson; and 
(b)	the member mentioned in section 11(3)(a) who is also the Chairperson of the Board; and 
(c)	the Director of the Institute; and 
(d)	the Chief Executive Officer of the Education Agency or the Chief Executive Officer's nominee.

Subsection (3) establishes the functions of the Nominations Committee:

(a)	consider expressions of interest received from persons in response to notices published under section 12 or 24C; and
(b)	decide the eligibility of those persons to be nominated for appointment as members of the Council or to be appointed as members of the Board; and:
(c)	give the Minister a shortlist of the persons considered to be eligible for nomination or appointment.

Subsection (4) further specifies the Nominations Committee function of recording the nomination by the CDU Council of a person for appointment as a member of the Council under section 11(1)(c); and forwarding the nomination to the Administrator.

Proposed section 23	Other Council committees

Subsection (1) enables the Council to establish the committees that it thinks are necessary to perform its functions and exercise its powers.

Subsection (2) provides that (a) the Director, or a person nominated by the Director, is a member of each committee; and (b) the Council must appoint at least 2 other persons to be members of a Council committee, one of whom must be a member of the Council. 

Division 3	Institute Advisory Board

This is a new provision to establish an advisory body to the Council and articulates its functions and procedures.

Proposed section 24	Establishment of Board

This section establishes the Institute Advisory Board.

Proposed section 24A	Functions and powers of Board

This section sets out the functions and powers of the Advisory Board.

Subsection (1) provides that the functions of the Board are to: 

(a)	advise, and make recommendation to, the Council about Indigenous cultural and social issues that are likely to affect the Institute; and 
(b)	consult with indigenous people, communities and organisations to promote constructive dialogue and engagement between the Institute and indigenous people; and 
(c)	advise the Institute on systemic and structural changes aimed at improving outcomes for indigenous students and clients of the Institute, with particular focus on vocational education and training and higher education, and
(d)	carry out other activities as requested by the Council.

Subsection (2) provides that if the Council agrees, the Board may engage persons with relevant expertise as consultants.

Subsection (3) provides that the Board has the powers necessary for the performance of its functions, including the power to establish committees to perform particular functions.

Subsection (4) provides that a committee established by the Board must consist only of members of the Board.

Subsection (5) specifies that the funding of the Board must be decided by the Council and met by the Institute.

Proposed section 24B	Constitution of Board

This section specifies how the Board is constituted.

Subsection (1) provides that the Board shall consist of:

(a)	the Chairperson, who is the member of the Council mentioned in section 11(3)(a); and
(b)	five Indigenous persons appointed by the Minister after considering the advice of the Nominations Committee.

Subsection (2) provides that of the persons appointed by the Minister:

(a)	the usual place of residence of each person must be in the Territory; and
(b)	at least one person must reside in the northern region of the Territory; and
(c)	at least one person must reside in the southern region of the Territory; and
(d)	the remaining persons are, as far as possible, to reside in diverse regions of the Territory;
(e)	the persons must represent a broad range of Indigenous community interests; and
(f)	each person must have demonstrated knowledge and understanding of cultural and social issues affecting Indigenous people; and
(g)	at least one person must have experience in Indigenous vocational education and training, research or technology; and
(h)	at least one person must have expertise in advising government or other service providers on matters affecting Indigenous people.

Subsection (3) provides that a person who is a member of the Council or staff, or a student, must not be appointed to the Board.

Proposed section 24C	Notice seeking expressions of interest for nomination as Board member 

This section provides for the giving of a notice seeking expressions of interest for nomination as Board member.

Subsection (1) provides that an appointment to the Board under section 24B(1)(b), the Director must give public notice that the Minister is seeking expressions of interest from persons for the appointment.

Subsection (2) provides that the Director must publish the notice in one or more newspapers circulating throughout the Territory and in any other way the Director considers will give notice to persons who are eligible for appointment.

Subsection (3) specifies that the notice must include:

(a)	the way, and the date by which, a person may make an expression of interest; and
(b)	the qualifications or expertise required for the appointment; and
(c)	the residential requirements for appointment; and 
(d)	other information the Director considers appropriate.

Proposed section 24D	Term of office of Board member

This section provides for the term of office of the Board members.

Subsection (1) provides the Chairperson of the Board holds office until the Chairperson vacates the office of a member of the Council.

Subsection (2) provides that each of the other members of the Board holds office for the period, not exceeding 3 years, specified in the instrument of the member's appointment.

Subsection (3) provides that a person appointed to be a member of the Board under section 24B(1)(b) cannot take office until the person's appointment takes effect (a) on the date the Minister signs the instrument of appointment; or (b) on the later date specified in the instrument.

Proposed section 24E	Vacation of office of Board member

This section specifies the circumstances under which a member of the Board vacates the member’s office. A member of the Board vacates the member's office if:

(a)	the member's term of office expires; or 
(b)	the member gives the Director a signed notice of resignation; or
(c)	the member ceases to be eligible under section 24B to hold the office; or
(d)	the member is absent from 3 consecutive meetings of the Board of which the member has been given reasonable notice and the Board has not approved the absence; or
(e)	for a member appointed under section 24B(1)(b) – the Council resolves the membership is terminated because:
(i)	at least two-thirds of all of the Council members agree at a meeting that the Board member, in exercising a power or performing a function of the office, has not complied with section 25; or
(ii)	the Council is satisfied the member has knowingly contravened a code of conduct applicable to the member; or
(iii)	the Council is satisfied the member is of unsound mind; or
(f)	the member is found guilty:
(i)	by a court in the Territory of an offence punishable by imprisonment for 12 months or more; or
(ii)	by a court outside the Territory of an offence which, if committed against a law in force in the Territory, would be an offence punishable by imprisonment for 12 months or more; or
(g)	the member becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration for their benefit; or
(h)	the member is disqualified from acting as a director of a company or managing corporations under Part 2D.6 of the Corporations Act 2001.

Proposed section 24F	Board to elect Deputy Chairperson

Subsection (1) provides that the members of the Board must elect a member as the Deputy Chairperson of the Board.

Subsection (2) provides that the member elected as Deputy Chairperson holds the office until (a) the member gives the Director a signed notice of resignation from the office; or (b) the member vacates the member's office on the Board.

Subsection (3) provides that the Deputy Chairperson must act in the office of Chairperson if (a) the Chairperson is unable, for any reason, to exercise the powers or perform the functions of the office; or (b) there is a vacancy in the office.

Proposed section 24G	Board Meetings

This section establishes the requirements for Board meetings.

Subsection (1) provides that the Board must hold at least 4 meetings in each calendar year, with an interval of not more than 4 months between each meeting.

Subsection (2) provides that the Chairperson of the Board must call the meetings that are necessary for the exercise of the powers and performance of the functions of the Board.

Subsection (3) provides that at least one-half of the members of the Board may request the Chairperson to call a meeting. 

Subsection (4) provides that a request under subsection (3) must (a) be in writing and signed by all the members requesting the meeting; (b) specify the matters proposed for deliberation at the meeting.

Subsection (5)(a) provides that the Chairperson must call the meeting within 21 days after receiving the request under subsection (3).

Subsection (5)(b) requires that the said meeting be held within 30 days after the date on which it is called.

Subsection (5)(c) allows for only those matters specified in the request to be deliberated at the meeting.

Subsection (6)(a) provides for the presiding member of the meeting to be the Chairperson; or in the absence of the Chairperson – the Deputy Chairperson; or in the absence of both the Chairperson and Deputy Chairperson – the member elected by the members present.

Subsection (6)(b) provides that a quorum is two thirds of the number of members for the time being holding office, and subsection (6)(c) specifies that each member present has one vote.

Subsection (6)(d) provides for questions arising to be decided by a majority of the votes of the members present and, if the votes are equal, the presiding member has a casting vote.

Subsection (6)(e) provides for, subject to the Act and By-laws, the procedure to be followed at or in connection with the meeting are to be decided by the Board.

Division 4	General matters for Institute entities

This Division includes the provisions that apply to all of the Institute entities.

Proposed section 25	Duties of member of Institute entity

This section broadens current section 17A by providing that the duties which are currently applicable to members of the Council will also apply to all Institute entities. An ‘Institute entity’ is the Council, a Council Committee or the Board. 

Subsection (1) provides that when a member of the Institute entity is exercising a power or performing a function of the office, they: 

(a)	must act always in the best interests of the Institute; and 
(b)	must act in good faith, honestly and for a proper purpose; and 
(c)	must exercise appropriate care and diligence; and 
(d)	must not use the office to improperly gain an advantage (either for the member or another person); and 
(e)	must disclose and avoid conflicts of interest.

Subsection (2) provides that if a circumstance mentioned in section 16(f) (found guilty by a court), (g) (bankrupt) or (h) (disqualified from acting as director) applies to a member of the Council, the member must notify the Council within 5 days after the circumstance occurs.

Subsection (3) provides that if a circumstance mentioned in section 24E(f) (found guilty by a court), (g) (bankrupt) or (h) (disqualified from acting as director) applies to a member of the Board, the member must notify the Council within 5 days after the circumstance occurs.

Proposed section 26	Disclosure of interest on becoming member of Institute entity

This section provides for the disclosure of interest by members of an Institute entity (applies to members of the Council, a Council Committee or the Board).

Subsection (1) provides that when a person becomes a member of an Institute entity, the person must disclose: 

(a)	the name and a description of a company, association or other body of which the person is a member or an officer or by whom the person is employed; and
(b)	the name and a description of a partnership of which the person is a partner or by whom the person is employed; and 
(c)	other interests the person has in relation to a specified person or entity that is likely to give rise to a conflict with the person's duties as member; and 
(d)	any other information prescribed by the rules.

Subsection (2) provides for the disclosure to be made in the manner and form prescribed by the rules.

Subsection (3) provides that in making the disclosure, the person is taken to have given sufficient disclosure of any direct or indirect pecuniary interest of the person in relation to any matter that might be considered at a meeting of the Institute entity or anything that might be done by the entity after the disclosure is made.

Subsection (4) provides that if there is a change to the information disclosed, or the person acquires new interests likely to give rise to a conflict with the person's duties as a member of the Institute entity, the person must vary the disclosure accordingly (a) in the manner prescribed by the rules; and (b) within 30 days after the change occurs or the interest is acquired.

Subsection (5) provides that the disclosure remains effective during the person's first and each successive term of office as a member of the Institute entity.

Subsection (6) provides that the Director must keep a record of all disclosures.

Proposed section 26A	Disclosure of interest on becoming aware of conflict of interest

This section provides for the disclosure of interest on becoming aware of a conflict of interest.

Subsection (1) provides that if a member of an Institute entity becomes aware that he or she has, or may have, a direct or indirect pecuniary interest in (a) a matter being (or to be) considered by the entity; or (b) something being (or to be) done by the entity.

Subsection (2) provides that the member must, as soon as possible, disclose the nature of the interest or possible interest at a meeting of the entity.

Subsection (3) provides the member must not (a) be present during deliberations, or take part in making a decision in relation to the matter or thing; or (b) perform a function under this Act in relation to the matter or thing.

Subsection (4) provides that the Institute entity may pass a resolution that all or part of subsection (3) does not apply to the member, but only after deliberating and voting on the matter in the member's absence.

Proposed section 26B	Validity of procedures and actions

This section provides that a procedure of an Institute entity, or a thing done by the entity, is not invalid solely because of:

(a)	a defect in any of the following:
(i)	the nomination for appointment or the appointment of a person as a member of the entity;
(ii)	the election of a member as a member of the entity or the declaration of the election;
(iii)	a delegation by or to the entity;
(iv)	the convening or conduct of a meeting of the entity; or
(b)	a vacancy in the membership of the entity; or 
(c)	a person purporting to be a member of the entity not being a member; or
(d)	the failure by a member of the entity to make the disclosure mentioned in section 26 or 26A.

Division 5	Director and Deputy Director of Institute

Proposed section 27	Director

This section provides for the appointment of a Director of the Institute.

Subsection (1) provides that the Council must appoint a person to be the Director of the Institute.

Subsection (2) provides that the Director holds office on the terms specified in writing by the Council.

Subsection (3) provides that the Director is the Chief Executive Officer of the Institute and is responsible to the Council for the management and administration of the Institute.

Subsection (4) provides that the Director also has the powers and functions prescribed by this Act or the By-laws.

Proposed section 28	Deputy Director

This section provides for the appointment of a Deputy Director of the Institute.

Subsection (1) provides that the Council must appoint a person to be the Deputy Director of the Institute.

Subsection (2) provides that the Deputy Director holds office on the terms specified in writing by the Council.

Subsection (3) provides that the Deputy Director must (a) act as the Director during a vacancy in the office; and (b) exercise the powers and perform the functions of the Director when the Director is absent from duty or the Territory or is otherwise unable to exercise the powers and perform the functions.

Subsection (4) provides that the Deputy Director also has the powers and functions prescribed by the By-laws.

Proposed section 29	Delegation by Director

Subsection (1) provides that the Director may, in writing, delegate to a person any of the Director's powers and functions under this Act.

Subsection (2) provides that the Director cannot delegate their functions as a member of the Council.

Proposed section 30	Validity of actions

This section specifies that the exercise of a power or performance of a function by the Director, Deputy Director or a delegate of the Director is not invalid solely because of a defect in (a) the appointment of the Director or Deputy Director; or (b) the delegation.

Clause 6	Section 45 amended

This section has been amended to reflect updated drafting practices.

Clause 6 provides for minor amendments to Section 45(2), accordingly.

Subclause (1) omits the wording “report is to be forwarded to the Minister” and replaced with “Council must forward the report”.

Subclause (2) omits from Section 45(2)(b) the word “any” and replaced with “a”.

Subclause (3) requires the following insert after 45(2) to give effect to Protocols 8 and 9 of the National Protocols:

(3)	The report must include details of:
(a)	the achievements and outcomes in relation to the mission and strategic direction of the Institute; and
(b)	the risk management within the Institute.

Clause 7	Section 57 replaced

This clause repeals the current section 57 and replaces it with the following provisions in order to modernise the indemnity provisions in the Act.

Section 57		Protection from liability

Subsection (1) provides that a person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function as any of the following:

(a)	a member of the Council;
(b)	a member of a Council committee;
(c)	a member of the Board.

Subsection (2) further provides that a person is not civilly or criminally liable for an act done or omitted to be done by the Institute, the Council or a Council committee, or the Board, in the exercise of a power or performance of a function under the Act.

Subsection (3) provides that the indemnities provided by subsections (1) and (2) do not affect any liability the Institute would, apart from those subsections, have for the act or omission.

Subsection (4) interprets the meaning of the terms for, in this section, the exercise, of a power, performance, of a function, as used in this section.

Clause 8 	Section 59 amended

Clause 8 amends the heading of Section 59 by omitting the word ‘transitional’ and replaces it with ‘transitional matters for Batchelor Institute of Indigenous Tertiary Education Act 1999’.

Part 9 	Transitional matters for Batchelor Institute of Indigenous Tertiary Education Amendment Act 2011

This new Part details the savings and transitional matters for the Institute, to allow for the continuation of Council and interim Council by-laws, rules, resolutions and actions. It also allows for the continued appointments of the Director and Deputy Director of the Institute, enables the interim Council and interim Nominations Committee to operate, and for the new Council and Board members to be appointed and for the new Council and the Board to commence.

Division 1	Preliminary and general matters

Proposed Section 60	Definitions

This section provides the definitions that are relevant to the transitional matters.

commencement day is defined by proposed section 68(1).
establishment day, see section 70(1).
interim Council means the interim Council constituted under section 66.
interim period means the period from the commencement day to the day before the establishment day.
new Council means the Council constituted and established in accordance with Division 3.
repealed, in relation to a specified provision of this Act, means the provision as in force immediately before the commencement day.

Proposed Section 61	Continuation of Council by-laws, rules, resolutions and actions

This section saves the existing Council by-laws, rules, resolutions and actions.

Subsection (1) provides that the by-laws, rules, codes of conduct and resolutions made by a Council constituted under repealed Part 3 and in force immediately before the commencement day continue in force as the by-laws, rules and resolutions of the interim Council.

Subsection (2) provides that anything done or omitted to be done before the commencement day by a Council constituted under repealed Part 3, during the interim period, taken to have been done or omitted to be done by the interim Council.

Proposed Section 62	Continuation of interim Council by-laws, rules, resolutions and actions

This section allows for the continuation of interim Council by-laws, rules, resolutions and actions.

Subsection (1) provides that the by-laws, rules, codes of conduct and resolutions of the interim Council that are in force immediately before the establishment day continue in force as the by-laws, rules and resolutions of the new Council. 

Subsection (2) provides that anything done or omitted to be done by the interim Council during the interim period is taken to have been done or omitted to be done by the new Council.

Subsection (3) provides for a reference in subsection (1) to by-laws, rules, codes of conduct and resolutions of the interim Council is a reference to (a) by-laws, rules, codes of conduct and resolutions made by the interim Council during the interim period; and (b) by-laws, rules, codes of conduct and resolutions taken to have been made by the interim Council as mentioned in section 61(1).

Subsection (4) provides that a reference in subsection (2) to anything done or omitted to be done by the interim Council is a reference to (a) anything done or omitted to be done by the interim Council during the interim period; and (b) anything taken to have been done or omitted to be done as mentioned in section 61(2).

Proposed Section 63	Director and Deputy Director

This section provides for the continued appointments of the Director and Deputy Director under repealed sections 27 and 28; the terms and conditions of those appointments; and delegations under repealed section 29 other than delegations of powers or functions conferred or imposed under repealed Part 3.

Division 2	Interim Council and interim Nominations Committee

Proposed Section 64	Interim Council to operate in interim period

This section provides for the interim Council to operate for an interim period, until such time as the new Council is constituted.

Subsection (1) provides that during interim period, sections 9 and 10 to apply as if a reference in those sections to the Council were a reference to the interim Council.

Subsection (2) provides that the interim Council shall consist of 5 persons appointed by the Minister, one of whom is to be appointed as the Chairperson of the interim Council.

Subsection (3) provides that the Minister must be satisfied that each person appointed under subsection (2) has the appropriate qualifications or expertise for membership of the interim Council.

Subsection (4) provides for the interim Council to exercise the powers and perform the function of the Council under the Act during the interim period as if it were the Council constituted under section 11.

Subsection (5) provides that a member of the interim Council has the same powers, functions, responsibilities, duties and protections under this Act as a member of the Council constituted under section11.

Proposed Section 65	Interim Nominations Committee

This section provides for the establishment of an interim Nominations Committee.

Subsection (1) provides that during the interim period, this Act applies as if a reference in this Act to the Nominations Committee were a reference to the interim Nominations Committee.

Subsection (2) specifies that the interim Nominations Committee consists of: 

(a)	the Chairperson of the interim Council;
(b)	the Director;
(c)	the Chief Executive of the Education Agency or the Chief Executive Officer's nominee;
(d)	an Indigenous person appointed by the Minister.

Subsection (3) provides that the Minister must be satisfied that the person appointed under subsection (2)(d) has appropriate qualifications or expertise to carry out the functions of a member of the interim Nominations Committee.

Division 3	New Council

Proposed Section 66	Appointment and election of members of new Council

This section provides for the appointment and election of new Council members.

Subsection (1) provides that the new Council must be constituted in accordance with section 11.

Subsection (2) provides that in constituting the new Council, the Director must give notice under section 12 and make the requests under section 13 within one calendar month after the commencement day. 

Subsection (3) provides subject to this Division, that the new Part 3 applies in relation the following matters as if a reference in the new Part 3 to the Council were a reference to the new Council:

(a)	the nomination and appointment of a person as a member of the new Council;
(b)	the election and declaration of a person to be a member of the new Council;
(c)	the appointment of a person as a member of the new Council if there is a failure to nominate or elect a member.

Proposed Section 67	Term of appointment of new Council members

This section relates to the term of appointment of new Council members.

Subsection (1) specifies that Section 15 applies in relation to the term of appointment of the members of the new Council except for the members appointed under section 11(1)(c) and (3)(b), (c) and (d).

Subsection (2) provides that a member of the new Council appointed under section 11(1)(c) or (3)(b), (c) or (d) is appointed for a term of 2 years only.

Proposed Section 68	Establishment day

This section provides for the new Council to be established as the Council on the establishment day.

Subsection (1) provides that the new Council is established as the Council on the establishment day when the appointment or declaration of each member of the new Council has taken effect as mentioned in section 15(4).

Subsection (2) specifies that the new Council must hold its first meeting no later than 30 days after the establishment day.

Division 4	Board

Proposed Section 69	Expressions of interest for appointment to Board

This section specifies that the Director must give notice seeking expressions of interest for appointment to the Board under section 24C within one calendar month after the commencement day.

Proposed Section 70	First meeting of Board

This section provides that the Board must hold its first meeting no later than 30 days after the appointment of each member under section 24B(1)(b) has taken effect as mentioned in section 24D(3).

Clause 10	Act further amended

This clause gives effect to the Schedule to the Bill.

Part 3	Amendment of Education (College and School Councils) Regulations

Clause 11	Regulations amended

This clause provides that Part 3 of the Bill amends the Education (College and School Councils) Regulations.

Clause 12	Part IIA repealed

This clause repeals Part IIA of the Education (College and School Councils) Regulations i.e. provisions which relate to the former Batchelor College.

Schedule	Batchelor Institute of Indigenous Tertiary Education Act further amended

The schedule provides for minor amendments to remaining provisions in the Act. These amendments do not change the legal effect or policy relating to these provisions except for amendments to sections 49(2)(c) and (d) which have the effect of now making the Board subject to the same By-laws as the Council.  The rest of the amendments simply modernise the terminology used in keeping with modern drafting practice.