Cemeteries and Crematoria Act 2013 No 105
Current version for 8 January 2019 to date (accessed 4 August 2020 at 18:32)
Part 5 Division 2 Subdivision 2
Subdivision 2 Conduct of operator members
80A   Application of Subdivision
(1)  The obligations imposed by this Subdivision are intended to apply in relation to all Crown cemetery operators and their operator boards and members and, in particular, to Crown cemetery operators that are statutory land managers and their operator boards and members.
(2)  This Subdivision applies only in relation to the exercise of a Crown cemetery operator’s functions as an operator.
(3)  If a Crown cemetery operator is not a statutory land manager, this Subdivision applies subject to the following:
(a)  any modifications to the provisions of this Subdivision prescribed by the regulations,
(b)  the constitution of, and any other governance provisions applicable to, the operator under another Act (including a Commonwealth Act, but not the Crown Land Management Act 2016) that the operator and its board are required to comply with.
(4)  However, this Subdivision does not apply in relation to Crown cemetery operators that are councils within the meaning of the Local Government Act 1993.
(5)  In this section:
modification includes addition, exception, omission or substitution.
81   Interpretation
A person is involved in a contravention of a provision of this Subdivision if, and only if, the person:
(a)  has aided, abetted, counselled or procured the contravention, or
(b)  has induced, whether by threats or promises, or otherwise, the contravention, or
(c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention, or
(d)  has conspired with others to effect the contravention.
82   Care and diligence—civil obligation only
(1) Care and diligence—operator members An operator member must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if the person:
(a)  were an operator member in the Crown cemetery trust’s circumstances, and
(b)  occupied the office held by, and had the same responsibilities as, the operator member.
Maximum civil penalty: $27,500.
(2) Business judgment rule An operator member who makes a business judgment is taken to meet the requirements of subsection (1), and the member’s equivalent duties at common law and in equity in respect of the judgment, if the member:
(a)  makes the judgment in good faith for a proper purpose, and
(b)  does not have a material personal interest in the subject matter of the judgment, and
(c)  informs themselves about the subject matter of the judgment to the extent that the member reasonably believes to be appropriate, and
(d)  rationally believes that the judgment is in the best interests of the Crown cemetery trust.
(3)  The operator member’s belief that the judgment is in the best interests of the Crown cemetery trust is a rational one unless the belief is one that no reasonable person in the member’s position would hold.
Note.
 This subsection only operates in relation to duties under this section and the equivalent duties at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence)—it does not operate in relation to duties under any other provision of this Act or under any other laws.
(4)  In this section:
business judgment means any decision to take or not take action in respect of a matter relevant to the business operations of the Crown cemetery trust.
83   Use of position—civil obligations
(1) Use of position—operator members An operator member must not improperly use his or her position to:
(a)  gain an advantage for the operator member or someone else, or
(b)  cause detriment to the Crown cemetery trust.
Maximum civil penalty: $27,500.
(2)  A person who is involved in a contravention of subsection (1) contravenes this subsection.
Maximum civil penalty: $27,500.
84   Use of information—civil obligations
(1) Use of information—operator members A person who obtains information because the person is, or has been, an operator member must not improperly use the information to:
(a)  gain an advantage for that operator member or someone else, or
(b)  cause detriment to the Crown cemetery trust.
Maximum civil penalty: $27,500.
(2)  The duty under subsection (1) continues after the person stops being an operator member.
(3)  A person who is involved in a contravention of subsection (1) contravenes this subsection.
Maximum civil penalty: $27,500.
85   Notification of significant events
(1)  If a trust board decides to do any of the following things, the Crown cemetery operator concerned must immediately give the Cemeteries Agency written particulars of the decision:
(a)  form a company or participate in the formation of a company,
(b)  participate in a significant partnership, trust, unincorporated joint venture or similar arrangement,
(c)  acquire or dispose of a significant share holding in a company,
(d)  acquire or dispose of a significant business,
(e)  commence or cease a significant business activity,
(f)  make a significant change in the nature or extent of its interest in a significant partnership, trust, unincorporated joint venture or similar arrangement.
Note.
 Part 3 of the Crown Land Management Act 2016 also imposes other obligations on Crown cemetery operators (including those with operator boards).
(2)  The Cemeteries Agency may give written guidelines to the trust board that are to be used in deciding whether particulars are required to be given under subsection (1).
86   Codes of conduct
(1)  A Crown cemetery operator must prepare and adopt a code of conduct to be observed by operator members and persons employed by the operator within 3 months after becoming the operator.
(1A)  A code of conduct in force under this section for a Crown cemetery trust for a Crown cemetery immediately before this section was amended by the Crown Land Legislation Amendment Act 2017 continues in force for the purposes of this Act as if:
(a)  the code had been adopted by the Crown cemetery operator for that cemetery on the date it was originally adopted, and
(b)  the members of the board of the operator and its employees had been signatories to the code.
(2)  The cemetery operator is to review its code of conduct at least every 3 years (or within such other period as is prescribed by the regulations) and make such changes as it considers appropriate.
(3)  The code must include such matters as are prescribed by the regulations.
(4)  In particular, the code may contain provisions for or with respect to the following conduct:
(a)  conduct that contravenes all or specified provisions of this Act or the regulations in all or specified circumstances,
(b)  improper or unethical conduct,
(c)  abuse of power and other misconduct,
(d)  the disclosure of interests (whether pecuniary or otherwise) that could conflict with the proper performance of functions and avoidance of conflicts of interest,
(e)  the disclosure of confidential documents and information.
(5)  The cemetery operator must provide a copy of its code of conduct as in force from time to time to each member of the trust board and employee and ask them to acknowledge their obligations under the code by signing it.
(6)  A member of a trust board or employee must not contravene a code to which he or she is a signatory.
(7)  Nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action, and nothing in this section affects rights or liabilities arising apart from this section.
87   Disclosure of material personal interest by members of trust board—civil obligations
(1)  If:
(a)  a member of a trust board has a direct or indirect material personal interest in a matter being considered or about to be considered at a meeting of the trust board, and
(b)  the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the trust board.
Maximum civil penalty: $5,500.
(2)  A disclosure by a member of a trust board at a meeting of the trust board that the member:
(a)  is a member, or is in the employment, of a specified company or other body, or
(b)  is a partner, or is in the employment, of a specified person, or
(c)  has some other specified interest relating to a specified company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under this section.
(3)  Particulars of any disclosure made under this section must be recorded by the trust board in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person.
(4)  After a member of a trust board has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the trust board otherwise determines:
(a)  be present during any deliberation of the trust board with respect to the matter, or
(b)  take part in any decision of the trust board with respect to the matter.
Maximum civil penalty: $5,500.
(5)  For the purposes of the making of a determination by the trust board under subsection (4), a member who has a direct or indirect material personal interest in a matter to which the disclosure relates must not:
(a)  be present during any deliberation of the trust board for the purpose of making the determination, or
(b)  take part in the making by the trust board of the determination.
(6)  A contravention of this section does not invalidate any decision of the trust board.
88   Invitations for tenders
(1)  If it is disclosed to the members of a trust board, or they have reason to believe, that a member of the board has or may have a direct or indirect material personal interest in a proposed contract with the trust:
(a)  the board must, by notice that complies with the requirements in subsection (2), invite tenders for the proposed contract, and
(b)  must not enter into the proposed contract unless satisfied that, in all the circumstances of the case, none of the tenders submitted is more advantageous than the proposed contract.
(2)  The notice inviting tenders must:
(a1)  be published in the Gazette and in:
(i)  a newspaper circulating throughout the State, or
(ii)  a manner approved in writing by the Minister having regard to the object of bringing notices of that kind to the attention of persons who may be interested in submitting tenders for the relevant contracts, and
(a)  set out the nature of the work or services to be performed or the goods to be supplied under the contract, and
(b)  invite persons willing to perform the work or services or supply the goods to submit tenders on or before a specified date (at least 21 days after publication of the notice) to the trust.
(3)  This section does not apply in the case of an emergency.
(4)  A contravention of this section does not invalidate any decision of the trust board.
89   Liability of operator board, members and other persons
(1)  A matter or thing done or omitted to be done by:
(a)  an operator member in the course of managing the affairs of a Crown cemetery trust, or
(b)  a person acting under the direction of an operator member (other than a director or officer of a corporation) in the course of managing the affairs of a Crown cemetery trust,
does not, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this or any other Act, subject the trust member or a person so acting personally to any action, liability, claim or demand.
(2)    (Repealed)