2.1 JURISPRUDENCIA INTERNACIONAL
2.1.1 Las muertes en el muro de Berlín
Chapter 2 outlined the various ways a reserve trust can be managed. This Chapter gives specific further guidance to reserve trusts managed by trust boards.
Members of the community and ex-officio representatives who are appointed to trust boards undertake a valuable role in the management of community facilities and Crown reserves. Trust board members are empowered to make decisions regarding the use and management of the land and are responsible for the implementation of those decisions.
Trust board members may also be the main users of the reserve, and may have become members of the trust board because of that interest. However, it is important that there be a clear separation of the two groups (management and users), both financially and in terms of decision making, because the two roles are legally quite distinct. It should always be kept in mind that the reserve is to be managed on behalf of the people of New South Wales as a whole and not for a particular group, interest or local community.
By participating in the activities of a local reserve trust, members of the community can play an important part in the management and operation of Crown reserves.
Trust boards frequently rely on the assistance of volunteers in fulfilling their responsibilities. Volunteers with a regular association with a reserve may form a useful pool of future members of the trust board.
The responsibilities of the trust board need to be clearly understood, both by its members and by potential future members.
This Chapter explains the responsibilities of trust board members, and provides detailed assistance as to how those roles and expectations can be met.
3.1
A typical trust board
A trust board must have at least three members and can have up to seven members. These are appointed by the Minister.
At its annual general meeting, a trust board must elect a chairperson. The trust board can also elect a secretary and treasurer from among its members.
Reserves which are listed in Schedule 1 of the Crown Lands (General Reserves) By-law 2006 must also elect a deputy chairperson, and are able to employ and pay elected trust board members to act as secretary and treasurer. However such employment and payment must be approved by the Minister.
The people elected at an annual general meeting hold their positions until the next annual general meeting, unless they resign or otherwise cease to be a member of the reserve trust. Ex-officio members
In addition to the appointed members, the Minister can nominate ‘ex officio’ members. An ex officio member is often a person holding some other position that has an interest in the
management of the reserve, for example, a councillor or mayor of a local council, or a position within Crown Lands. It is the ‘position’ that is appointed as the ex officio member, not a named person.
Ex officio members are not included in the required minimum of three or maximum of seven members on the trust board. The Minister may appoint any number of ex officio members. An ex officio member can appoint a nominee to attend meetings in his or her place. The Minister must approve the appointment of a nominee prior to the meeting.
Ex officio members have all the rights and responsibilities of other members. They can speak and vote at meetings of the trust board and can be elected to executive positions (e.g.
chairperson, secretary, etc).
Encouraging diversity on boards
The NSW Government encourages the provision of greater opportunities for the community to participate in its decision making process and is interested in increasing the diversity of
representation on its boards and committees. This includes the encouragement of women, representatives of the local Aboriginal community, and people of diverse cultural backgrounds to participate in trust boards.
Diversity of representation allows views and opinions that may otherwise be overlooked to be put forward. This can assist in balancing the interests of members with different perspectives gained from their different experiences. Increasing the diversity of a trust board increases its ability to meet its responsibilities to provide for the needs of the community at large, expands the networks available to the trust, helps it reach its audience, and can boost its profile. It can also be important to ensure that representatives of particular communities or groups are involved with those communities or groups rather than simply being from that community or group.
A brochure encouraging women to apply for board positions is available here: www.boards.dpc.nsw.gov.au/publications-folder/Appointing%20women.pdf
A brochure encouraging cultural diversity is available here: www.boards.dpc.nsw.gov.au/publications-folder/Wider%20horizons.pdf
3.2
The role of the trust board
The main role of a trust board is to manage the affairs of the reserve trust and the reserve itself. This responsibility for managing the affairs of the trust belongs to the members of the trust board and cannot be delegated entirely to others. However, a trust board can:
• appoint or employ others to assist it in managing the reserve, and
• delegate (with the consent of the Minister) its functions as reserve trust manager to a management committee, organisation, group or individual, as outlined in Chapter 17. For example, a management committee could assist with the day-to- day operations of a reserve by undertaking such activities as bush regeneration, painting or collection of fees.
Trust board members should attend all meetings of the trust board or send an apology and provide a reason for their inability to attend.
While a trust board may employ people to assist it in the management of the reserve (e.g. rangers, caretakers, maintenance staff), the members of the board should also ensure that they regularly visit and inspect the reserve to identify and rectify hazards and to see that maintenance and other matters authorised by the trust board have been carried out.
The trust board can make decisions about regulating such things as: • the way in which the reserve is used
• the driving and parking of vehicles (or the mooring of vessels) on the reserve • hours of entry
• fees to be charged for entry • permitted or prohibited activities.
3.3
By-laws
Section 128 of the Crown Lands Act 1989 enables by-laws to be made covering a wide range of topics. The making and review of by-laws is covered by the Subordinate Legislation Act 1989. The Crown Lands (General Reserves) By-law 2006 has been made to regulate, within the reserves to which it applies:
• the use generally of a reserve
• the management of any cemeteries or crematoriums
• the conduct of trust boards, and associated general administration matters. • Application of the By-law varies:
• Clause 18 (relating to fees and charges) applies to all reserves. • Division 2 of part 3 applies to cemeteries and crematoriums
• other provisions apply only to those reserves listed in Part 1 of Schedule 1 of the By-law (reserves generally) and to reserves managed by the Ministerial Corporation.
The By-law can be viewed at:
www.legislation.nsw.gov.au/maintop/view/inforce/subordleg+493+2006+cd+0+N
Reserve trust managers should familiarise themselves with the By-law because it contains detailed rules about how reserves and cemeteries can be used, provides ways of regulating their use and controlling the conduct of people on the reserve, and sets out rules for the conduct of the trust board itself. In certain circumstances, legal proceedings can be brought to enforce the laws, regulations and by-laws which apply to the reserve. You should consult your local office of Crown Lands if you believe there has been a breach of the By-law.
3.4
Appointing or replacing trust board members
Members of a trust board are appointed by the Minister. Their term of appointment can be up to five years. The length of the term is specified in the notification of their appointment.
At the end of their term, members can be re-appointed (that is, they are not prevented from serving successive terms). However, they are not necessarily guaranteed re-appointment. The Minister can also appoint acting members to attend in the place of members who are absent or ill.
A person ceases to be a member of a trust board if they: • submit a written resignation to the Minister • complete their term and are not re-appointed
• become bankrupt or seek the protection of bankruptcy laws
• are mentally ill and become a patient dealt with under the relevant mental health legislation
• become a protected person under the Protected Estates Act 1983
• are convicted anywhere in Australia or overseas of an offence that is punishable in New South Wales by at least 12 months imprisonment
• are convicted of an offence under Schedule 4 of the Crown Lands Act (pecuniary interests) in relation to any reserve trust, unless the convicting court orders that they should not cease to be a member
• die while in office. Casual vacancies
A casual vacancy on the trust board will occur when someone ceases to be a member of the trust board (see the preceding section). The Minister can appoint people to fill casual vacancies on the trust board.
A casual vacancy among the elected officers of the trust board will occur if someone who was elected to office at the annual general meeting resigns, dies or otherwise ceases to be a member of the trust board. That casual vacancy should be filled by one of the board members by an election held at the next meeting of the board. If the General Reserves By-law applies to the reserve, the vacancy must be filled at that meeting.
Ex officio members
Ex officio members of reserve trusts are usually appointed because they hold some other
position (e.g. elected membership of a local council, or officer of Crown Lands). It is the ‘position’ that is appointed as the ex officio member rather than a named person. When a person ceases to hold the other position, that person also ceases to be a member of the reserve trust (and the new incumbent of that position becomes a member of the reserve trust).
In the case of elected councillors or a mayor, they continue to be a member of the trust board until either one month has passed since they lost their local government position, or their local government position is filled, whichever happens first.
The person who succeeds them in that role then takes up the ex officio position on the trust board. If the ex officio member is not the holder of an identified office in the other body (for example, if the ex officio member is simply a councillor of the local council rather than the mayor), the other body should nominate a replacement ex officio appointee to the reserve trust as soon as possible after the vacancy occurs.
3.5
Can trust board members be paid?
Trust board members are not paid for the time spent inspecting, operating or maintaining the reserve, attending meetings of the trust board, or otherwise running the affairs of the reserve trust. They can, however, be reimbursed for out-of-pocket expenses if the trust board approves, as detailed below.
Normally the treasurer and secretary elected at the annual general meeting are treated as volunteer members of the board and are not paid for the time they devote to that office. However, if the Crown Lands (General Reserves) By-law 2006 applies to the reserve:
• a member of the trust board can be employed as the secretary or the treasurer and can be paid for the work they carry out in that capacity if approval is given by the Minister • if a member is to be employed and paid for carrying out such duties, the board resolution
that authorises that appointment should clearly set out: o the duties they are to perform
o the length of time for which they are appointed (a fixed term should be stated, e.g. until the trust’s next annual general meeting, so that the appointment can be reviewed at the end of that term)
o the amount they are to be paid o how that amount is calculated
o the Minister’s approval date and any conditions.
Trust funds are by their very nature, public funds held “on trust” and reserve trust managers must be able to demonstrate that expenditure and the use of trust funds is reasonable, acceptable, has been necessary and is incurred only for the general purposes of the reserve trust. Reserve trust managers are wholly accountable for the reserve trust’s funds under their control and a high standard of accountability, transparency and good governance surrounding the use of these funds and expenditure is necessary to support this.
Trust board members should be required to provide a receipt before any reimbursement of out- of-pocket expenses and expenses should be assessed as reasonable, acceptable and
necessary, has been incurred for the general purposes of the reserve trust, and as consistent with the reserve trust’s adopted policies on out-of-pocket expenses.
See also Chapter 15 about the appointment of volunteers, employed staff and contractors and Chapter 20 about the use of trust funds, including for out-of-pocket expenses.
3.6
The trust board’s first meeting
At the first annual general meeting following the appointment of the full trust board, a chairperson and other office-bearers will be elected.
New board members need to gain an understanding of their role and responsibilities as soon as possible after appointment. Unless appointed to fill a casual vacancy, a trust board member’s first meeting is likely to be the annual general meeting.
At the first meeting, the trust board should review the plan of management for the reserve, if it has one, so that members can familiarise themselves with the way the reserve is intended to be used and managed. The trust board should also review the reserve trust’s risk management checklist at this meeting.
As members can be re-appointed, it is likely that some members will have already served on previous boards. Their experience in managing the reserve and in conducting meetings will provide significant guidance to new members.
3.7
Code of conduct
Trust board members and trust employees have responsibility for the proper management of important public assets. As such they need to operate with a high standard of ethical behaviour. To assist, Crown Lands requires that reserve trust managers prepare and adopt a written code of conduct that clearly outlines expectations for trust board members and trust employees, and sets out requirements and guidelines for key matters such as out-of-pocket expenses. Crown Lands requires that the code of conduct be reviewed regularly, and that new members and employees of the trust be given a copy of the code and be made aware of its importance. Conduct of trust board members and trust employees should be in accordance with the NSW Government Boards and Committees Guidelines (July 2013) published by the NSW Department of Premier and Cabinet. The guidelines can be accessed at:
www.boards.dpc.nsw.gov.au/publications-folder/2013-
170983%20NSW%20Government%20Boards%20and%20Commitees%20Guidelines.pdf
To assist in preparing a written code of conduct, the Department of Premier and Cabinet has also prepared a further document: Guidelines for Developing and Implementing a Code of Conduct (part of a broader Memorandum: Model Code of Conduct for NSW Public Agencies (M1997-10), available at:
www.dpc.nsw.gov.au/__data/assets/pdf_file/0010/116578/Guidelines_for_Developing_and_Implementing _a_Code_of_Conduct.pdf
In addition, reserve trust managers carry out work for the NSW Department of Trade and
Investment, Regional Infrastructure and Services (DTIRIS) as a result of having been appointed to their position (given Crown Lands is an agency of DTIRIS). As such, reserve trust managers are also required to comply with relevant parts of Schedule 1 of the general code of conduct adopted by DTIRIS. Schedule 1 is titled Code of Conduct for members of advisory committees / boards, contractors and consultants to the NSW Department of Trade and Investment, Regional Infrastructure and Services and can be found at:
www.trade.nsw.gov.au/__data/assets/pdf_file/0008/427643/Code-of-Conduct-Schedule-1-externals.pdf
This code of conduct could also be used as a guide in developing the trust’s own code of conduct.
Where a corporation is appointed as a reserve trust manager, that corporation may have its own corporation code of conduct that can be applied to the management of the Crown reserve and Crown reserve trust. In some cases the code of conduct may require modification to ensure it adequately covers the corporation’s role as reserve trust manager.
When developing your code of conduct it will be useful to refer to other relevant chapters in this Handbook that detail reserve trust responsibilities in such areas as managing risk, insurance and liability, employment, and the use of trust funds.
3.8
Managing conflicts of interest
A ‘conflict of interest’ has been defined as:
… a conflict between the public duty and private interests of a public official, in which the public official has private ... interests which could improperly influence the performance of their official duties and responsibilities.1
Conflicts of interest can arise from seeking to avoid personal losses as well as from seeking to gain personal advantage, whether financial or otherwise. Conflicts of interest can also be actual, perceived or potential. These are defined by the NSW Independent Commission Against
Corruption (ICAC):
• An actual conflict of interest involves a direct conflict between a public official’s current duties and responsibilities and existing private interests.
• A perceived or apparent conflict of interest can exist where it could be perceived, or appears, that a public official’s private interests could improperly influence the
performance of their duties – whether or not this is in fact the case.
• A potential conflict of interest arises where a public official has private interests that could conflict with their official duties in the future. 2
1
Organisation for Economic Development (OECD) (2003), Managing Conflict of Interest in the Public Service: Guidelines and Country Experiences.
For more information on conflicts of interest refer to the ICAC guidelines “Managing Conflicts of Interest in the Public Sector” at www.icac.nsw.gov.au/documents/doc_download/3322-managing- conflicts-of-interest-in-the-public-sector-guidelines
Trust board members need to be aware that there are a number of circumstances in which a potential conflict of interest may arise in the management of a reserve.
Sometimes a reserve is principally used by one organisation. For example, a sporting club may