Legislative Assembly for the ACT: 1998 Week 8 Hansard (27 October) . . Page.. 2252 ..
MR STEFANIAK (Minister for Education) (11.32), in reply: From that, I take it that Mr Berry is opposing about three clauses and not the others, so I will just address my remarks to those concerns he raised. I have had several discussions with Mr Berry in an attempt to alleviate some of the concerns he has. Firstly, Mr Berry voiced concern in relation to section 18. The position of executive officer is certainly not abolished; it is only removed from the board. It is a little bit akin to the role of a secretary-manager of a licensed club. A licensed club may elect 10 directors as members of the board, and the secretary-manager has a role to play at meetings but he is not formally one of the directors.
In no way does anything in this Bill dilute, nor is it intended to dilute, the independence of the board. As indicated in my speech when I introduced this Bill, the Bill seeks to remove all references to the executive officer. Mr Berry referred to the relevant clauses. When we debated this legislation last year, the size of the proposed board was questioned by Mr Moore and, as indicated in my presentation speech, it was not necessary for the executive officer to be a formal member of the board. The executive officer will be at all the board meetings and have a very important role to play there, but not as a formal member of the board. The amendment achieves this.
Whilst the power of the board to direct the executive officer is no longer enshrined in the legislation, especially in relation to section 18, this does not result in any diminution at all of the board's power and functions. They remain unchanged, as outlined in section 5, which deals with functions, and section 6, which deals with powers. There is no reference to those sections in the amendment. In addition, Mr Speaker, section 19 provides ample provision for public servants to implement the decisions of the board and this renders section 18 redundant.
I want to make a point abundantly clear, in case anyone has any doubt about it. As Mr Stanhope and Mr Humphries are well aware, a principle of statutory interpretation is that if there is any doubt a court goes back to the debate in the Assembly. I make it absolutely clear that in terms of section 19 of the principal Act public servants, when working on board matters, will perform their functions as the board directs. Any suggestion that this amendment produces a diminution in the board's capacity to carry out its functions, or that there is a reduction in its powers to make decisions which will be implemented by an executive officer, is completely fatuous. That is not the intent at all. These amendments are in no way to be seen as any diminution in the board's independence, its powers or its ability to direct and for the department to respond to its needs and its wishes. This amendment has no effect on the functions or powers of the board, or on its capacity to have its decisions implemented by an executive officer.
Mr Berry mentioned a couple of other amendments in this Bill. He mentioned opposition to clause 5, which deals with membership of the board. I think I have dealt with that. He also mentioned the representative of the chief executive officer. He has indicated a number of positions where a person is nominated to be a delegate, or a stakeholder. A number of stakeholders are on this board. They nominate a person to attend, plus a proxy.