POWER AND WATER CORPORATION LEGISLATION AMENDMENT BILL 2014

Serial 63
Power and Water Corporation Legislation Amendment Bill 2014
Mr Tollner

A Bill for an Act to amend the Power and Water Corporation Act and Government Owned Corporations Act, and for related purposes

7A Shareholding Minister
10 Portfolio Minister
19A Interim arrangements for new Government owned corporations
51A Business or trading names
Part 5A Restructure of Government owned corporations

53E Effect of transfer regulations – contravention of laws, civil wrongs, etc.

53U Protection from liability
53V Inconsistency with constituting Act
Part 7 Transitional matters for Power and Water Corporation Legislation Amendment Act 2014

7 Matters relating to Public Sector Employment and Management Act
Schedule Modifications of Public Sector Employment and Management Act in relation to the Corporation

An Act to amend the Power and Water Corporation Act and Government Owned Corporations Act, and for related purposes

This Act may be cited as the Power and Water Corporation Legislation Amendment Act 2014.

(1) Section 3, definitions portfolio Minister and shareholding Minister

constituting Act, for a Government owned corporation, means the Act by which it is established or continued.

(a) if the chief executive officer of a Government owned corporation is a director – a director other than the chief executive officer; or

(2) All of the shares in the Government owned corporation must be held by the shareholding Minister of the Government owned corporation.

(b) if another minister is nominated under subsection (2) – the other minister.

(2) The Chief Minister may, in writing, nominate a minister to be the shareholding Minister of a Government owned corporation.

(a) may nominate a minister by name or by reference to a ministerial office; and

(a) the minister administering the Government owned corporation's constituting Act; or

(b) if another minister is nominated under subsection (2) – that other minister.

(2) The Chief Minister may, in writing, nominate a minister to be the portfolio Minister of a Government owned corporation.

(a) may nominate a minister by name or by reference to a ministerial office; and

(a) the number of directors, which must include at least 2 non-executive directors; and

Subsection (7) is not intended to affect the application of section 34(1) of the Interpretation Act, which requires the Administrator to act on the advice of the Executive Council.

(2) The Government owned corporation's board must appoint a person to be the chief executive officer.

(2A) The person appointed cannot be the chairperson or deputy chairperson of the board.

(4) An appointment or termination may be made only after consultation with the Government owned corporation's shareholding Minister.

(b) on the terms and conditions (including as to remuneration and allowances) agreed by the board and the shareholding Minister.

(7) A person ceases to be the chief executive of a Government owned corporation:

(e) if the person becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

(i) convicted in the Territory of an offence that is punishable by imprisonment for 12 months or more; or

(ii) convicted elsewhere than in the Territory of an offence that, if committed in the Territory, would be an offence punishable by imprisonment for 12 months or more; or

(iii) disqualified under Part 2D.6 of the Corporations Act 2001 from managing a corporation; or

(g) in the circumstances set out in the Government owned corporation's constitution.

board of a Government owned corporation may appoint a person to act as chief executive officer

(1A) The person appointed cannot be the chairperson or deputy chairperson of the board.

(3) An appointment or termination may be made only after consultation with the Government owned corporation's shareholding Minister.

(b) the Government owned corporation's first chief executive officer has not yet been appointed.

(a) both chairperson of the board and acting chief executive officer under section 17(1)(a); or

(b) both deputy chairperson of the board and acting chief executive officer under section 17(1)(a).

The portfolio Minister, the shareholding Minister and a Government owned corporation

portfolio Minister, with the agreement of the shareholding Minister, may direct a

(5A) The shareholding Minister must consult with the Government owned corporation's portfolio Minister before exercising a function under subsection (2), (4) or (5).

shareholding Minister of a Government owned corporation may, in writing, notify the board of the

(b) if the shareholding Minister has consulted the Government owned corporation's portfolio Minister; and

shareholding Minister of a Government owned corporation may give the board of the

(b) if the shareholding Minister has consulted the Government owned corporation's portfolio Minister; and

(3) The procurement policy must be approved by the Government owned corporation's shareholding Minister.

(4) The shareholding Minister must consult with the Government owned corporation's portfolio Minister before approving, or refusing to approve, a procurement policy.

(5) The Government owned corporation must comply with the procurement policy approved by the shareholding Minister.

(1) A Government owned corporation must give relevant corporate information to its shareholding Minister or portfolio Minister when requested by the Minister to do so.

relevant corporate information, in relation to a Minister, means information about the affairs of the corporation or any of its subsidiaries that the Minister reasonably needs for the performance of the Minister's functions under this Act.

A Government owned corporation may use and operate under any of the following names:

(b) one or more business or trading names approved by the Government owned corporation's shareholding Minister by notice in writing.

apply, for a transferable instrument in relation to a person, see section 53B(6).

(a) a legal or equitable interest of any kind (whether present or future and whether vested or contingent) in property of any kind (whether real or personal and whether tangible or intangible); and

liability means a liability, duty or obligation of any kind (whether present or future and whether vested or contingent).

(d) a corporation (as defined in the Corporations Act 2001), or other body corporate, that is owned by the Territory;

transferable instrument means an instrument (other than an Act or subordinate legislation but including any other statutory instrument) that creates, modifies or extinguishes a right or liability of any kind.

(1) Regulations may be made under this section for the purpose of effecting the transfer of all or part of the business of a Government owned corporation to a relevant entity.

(a) transfer all or part of an asset or liability of a Government owned corporation or a subsidiary to a relevant entity;

(b) in relation to a transferred asset – require the transferee to provide consideration for the transfer to the Government owned corporation or subsidiary from which it was transferred or to the Territory;

(i) ascribe a value to the asset or liability or provide a method for how the value is to be determined;

(ii) provide for the manner in which the asset or liability is to be dealt with in a relevant entity's accounts;

(d) in relation to a transferable instrument that would, but for the regulations, apply to a Government owned corporation or a subsidiary (Corporation A), provide that the instrument becomes an instrument that:

(ii) applies to Corporation A or the relevant entity to the extent specified in the regulations; and

(e) in relation to proceedings to which, but for the regulations, a Government owned corporation or a subsidiary (Corporation A) would be a party:

(i) provide that a relevant entity become a party to the proceedings in place of Corporation A; or

(ii) provide that relevant entity become a party to the proceedings, as well as Corporation A, to the extent specified in the regulations; or

(iii) provide that Corporation A continues as a party to the proceedings as if the regulations had not been made;

(f) in relation to a right that would, but for the regulations, be available to or against a Government owned corporation or a subsidiary (Corporation A) – provide that the right becomes a right that:

(ii) is available to or against a relevant entity, as well as Corporation A, to the extent specified in the regulations; or

(iii) continues to be available to or against Corporation A as if the regulations had not been made;

(g) provide that a relevant entity is the successor in law of a Government owned corporation or a subsidiary to the extent specified in the regulations;

(h) make provision in relation to the officers, employees and other staff of a relevant entity that is affected by the regulations;

(i) make provision for any other matter in respect of which it is necessary or convenient for provision to be made for giving effect to the purpose mentioned in subsection (1).

(4) The regulations may identify something as a thing to which a paragraph of subsection (2) applies by:

(b) providing a method for how the things to which the paragraph is to apply are to be identified, including by providing for a Minister to prepare a register of those things.

(a) specify the amount of the consideration or provide a method for how the amount of the consideration is to be determined; and

(b) provide for the terms on which the consideration is to be provided, including by creating a debt owed by the transferee.

(6) For subsection (2)(d), a transferable instrument applies to a person if:

(e) the instrument has any other connection with or application in relation to the person.

(a) part of the business of a Government owned corporation is to be transferred under this Part; and

(b) an instrument (an internal instrument) provides for arrangements between that part of the business and another part of the business of the Government owned corporation.

(2) Transfer regulations may make provision for an internal instrument (including by its inclusion in a register mentioned in section 53B(4)(b)) as if it were a transferable instrument.

(3) If the regulations do make such provision, for the purposes of this Part, the instrument is to be taken to be a contract creating rights and liabilities between the 2 parts of the business as if they were separate legal entities.

Anything purported to be effected by transfer regulations has effect despite anything in any Act in force at the time the regulations commence.

53E Effect of transfer regulations – contravention of laws, civil wrongs, etc.

(b) does not constitute a breach of confidence, a breach of a professional code, or other civil wrong.

(b) does not fulfil a condition in a transferable instrument that would do any of the following:

(i) allow a person to terminate or modify the operation or effect of the instrument;

(ii) allow a person to enforce an obligation or exercise a right under the instrument;

(v) require money to which the instrument relates to be paid before its stated maturity; and

(2) If, but for this section, a precondition would have to be satisfied before something that is done by transfer regulations could occur, the precondition is taken to have been satisfied unconditionally before the regulations have effect.

1 If notice would otherwise be required to be given before something could be done, the notice is taken to have been given.

2 If the approval of a person would otherwise be required before something could be done, the approval is taken to have been given unconditionally.

(1) This section applies if an asset or liability that is transferred by transfer regulations is:

(2) The transfer of the asset or liability by the transfer regulations does not sever any joint tenancy or joint liability or in any other way affect the interest or liability of the other person.

(1) This section applies if there is any impediment to a provision of transfer regulations having effect (for example, because a matter is governed by a law of another jurisdiction).

(2) The relevant entities affected by the transfer regulations and their shareholding and portfolio Ministers must take all practicable steps to ensure that the effect sought to be achieved by the provision is achieved.

The relevant entities affected by transfer regulations must make appropriate arrangements for the custody of, and access to, documents and information that relate to anything that is affected by the transfer regulations.

(a) the relevant entity to which it is transferred must give the relevant registrar all documents and information the registrar needs in order to register the effect of the transfer regulations; and

(b) if the registrar is authorised by a law of the Territory – the registrar must register the effect of the transfer regulations.

(2) If transfer regulations affect proceedings as mentioned in section 53B(2)(e)(i) or (ii):

(a) a relevant entity that becomes or ceases to be a party to the proceedings must give to the relevant court officer all documents and information the officer needs in order to register the effect of the transfer regulations; and

(b) if the court is a Territory court – the court officer must register the effect of the transfer regulations.

(3) The documents and information must be given in a form that is acceptable to the registrar or court officer (which need not be the form in which such documents and information would ordinarily be required to be given).

court officer for a court, means the registrar, clerk or other officer responsible for recording matters relating to proceedings before the court.

(a) record the documents and information necessary to show the effect of the transfer regulations; and

(b) take any other action that is appropriate in consequence of the transfer regulations having had effect.

Example for definition register the effect of the transfer regulations, paragraph (b)

If land is transferred it may be appropriate for the Registrar-General to issue a new certificate as to title.

registrar means a person who is authorised by a law of the Territory or another jurisdiction to register documents and information relating to, or otherwise record, transactions affecting assets, rights or liabilities.

3 The Registrar of Personal Property Securities under the Personal Property Securities Act 2009 (Cth).

(2) At the request of a person who would, but for subsection (1), be liable to pay Territory tax in relation to a tax-free action, the Treasurer may certify in writing that a specified thing is a tax-free action.

(3) For all purposes and in all proceedings, a certificate under subsection (2) is conclusive evidence of the matters certified in it, except so far as the contrary is shown.

(b) that is done for the purpose of giving effect to the transfer of business being effected by the regulations.

Territory tax means any tax (including stamp duty under the Stamp Duty Act), duty, fee, levy or charge payable under a law of the Territory.

This Division applies if transfer regulations for the purpose of effecting the transfer of all or part of the business of a Government owned corporation to a relevant entity have commenced.

commenced regulations means the transfer regulations mentioned in section 53M.

transfer date means the date on which the transfer of business effected by the commenced regulations occurred.

(b) provided for something in a way other than the way in which it ought to have been provided for; or

(2) In this section, a reference to something that ought to have been done, is a reference to something that was necessary or convenient to be done in order to properly effect the transfer of business mentioned in section 53M.

(b) the error cannot adequately be rectified by the making of further transfer regulations.

(2) The Minister may, by Gazette notice, make a correction order to rectify the error.

(3) The Minister cannot make a correction order more than 6 months after the transfer date.

(a) do anything that could have been done by the commenced regulations under section 53B(2)(a) to (f); and

(b) provide for a matter of a transitional nature that is necessary or convenient because of the making of the order.

(2) A correction order may have retrospective operation to a day not earlier than the transfer day.

(3) However, to the extent to which the order has retrospective operation, it does not operate to the disadvantage of a person (other than a relevant entity) by:

This Part, other than section 53B and this Division, apply in relation to a correction order as if it were transfer regulations.

(1) The shareholding Minister for a Government owned corporation may, in writing, direct the Government owned corporation to do anything that the Minister considers necessary or convenient to be done for the purpose of:

(b) preparing for the transfer of business that is to be effected by the transfer regulations; or

(2) The direction may require the Government owned corporation to do something that it could not otherwise lawfully do.

(4) The shareholding Minister must table a copy of the notice in the Legislative Assembly within 6 sitting days after the notice is given to the board.

(5) The Minister cannot give a direction under this section more than 6 months after the transfer of business occurred.

(6) This section does not affect the ability of a Minister to give directions under any other provision of this Act.

(7) A reference in this section to doing something includes a reference to refraining from doing something.

(1) A protected person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith for the purpose of:

(b) preparing for the transfer of business that is to be effected by the transfer regulations; or

protected person means a relevant entity, other than the Territory, or an officer of a relevant entity.

(1) If there is an inconsistency between this Act and the constituting Act for a Government owned corporation, this Act prevails to the extent of the inconsistency.

(2) If there is an inconsistency between a ministerial direction given to a Government owned corporation under this Act and a ministerial direction given to the Government owned corporation under its constituting Act, the direction given under this Act prevails to the extent of the inconsistency.

Part 7 Transitional matters for Power and Water Corporation Legislation Amendment Act 2014

(1) An existing CEO continues to hold office as if he or she had been appointed by the board of the Government owned corporation.

(b) on the same terms and conditions as applied immediately before commencement.

commencement means commencement of section 11 of the Power and Water Corporation Amendment Act 2014.

existing CEO means a person who was the chief executive officer of a Government owned corporation immediately before commencement.

(1) Section 3, definitions Chief Executive Officer and Northern Territory Electricity Commission or Commission

CEO means the person appointed under section 16 of the Government Owned Corporations Act to be the chief executive officer of the Corporation.

(a) is an Agency for the purposes of the Public Sector Employment and Management Act; and

(2) An Administrative Arrangements Order cannot be made that nominates the Corporation as an Agency.

(1) The CEO is the Chief Executive Officer of the Corporation for the purposes of the Public Sector Employment and Management Act.

(2) The Public Sector Employment and Management Act applies in relation to the Corporation as if it had been amended as set out in the Schedule.

(aa) to manage, plan, develop, expand, enhance, improve and reinforce electricity networks and power systems;

(ac) to provide services designed to improve the efficiency of electricity supply and the management of demand on electricity networks;

required or authorised to do under the Electricity Reform Act, Electricity Networks (Third Party Access) Act or

(4) The Corporation may provide billing, procurement, financial and commercial services to one or more of the following:

(a) the Power Generation Corporation established by section 5 of the Power Generation Corporation Act;

(b) the Power Retail Corporation established by section 5 of the Power Retail Corporation Act;

Northern Territory Electricity Commission or Commission means the body corporate established under section 4 of the Electricity Commission Act 1978.

Schedule Modifications of Public Sector Employment and Management Act in relation to the Corporation

(1) The functions of the Chief Executive Officer of the Power and Water Corporation under this Act are to employ and manage employees in accordance with this Act for the purpose of enabling the Corporation to perform its functions.

In the exercise of his or her functions, the Chief Executive Officer is subject to the direction of the Board of the Power and Water Corporation (see section 16(5) of the Government Owned Corporations Act).

(b) upholds the human resource management principle and performance and conduct principle; and

Provision	Amendment
	omit	insert
section 5(1)(a), at the end		and
section 6(2)	2001
section 9(1), after "Minister"		of a Government owned corporation
section 9(2)(b), after "to the"		Government owned corporation's
section 11(1), after "by the"		Government owned corporation's shareholding
section 11(2)	the	its
section 11(3)	the Minister	the shareholding Minister
section 11(7)	Minister a constitution of a Government owned corporation	Minister of a Government owned corporation the Government owned corporation's constitution
section 11(9)	Minister each	Minister of a Government owned corporation the
After section 11(9)		(10) In this section: *shareholding Minister*, for a unit of administration that is to become a Government owned corporation, means the minister who will be the shareholding Minister when the unit becomes a Government owned corporation.
section 12(4), after "be a"		non-executive
section 14(1) after "Minister"		of a Government owned corporation
section 14(2), after "of a"		non-executive
section 15(2), after "to the"		Government owned corporation's
section 15(3), after "notify the"		Government owned corporation's
section 18(2)	may appoint a board of a	of a Government owned corporation may appoint a non-executive board of the
section 19(1)	may appoint a	of a Government owned corporation may appoint a non-executive
section 19(4)(b), after "to the"		Government owned corporation's
section 20	2001
section 24(1)	Minister director (other than the chief executive officer) or an acting director of a	Minister of a Government owned corporation non-executive director or an acting director of the
section 25(1)	a director	a non-executive director
section 25(1)(c), after "to the"		Government owned corporation's
section 25(1)(a) to (f), at the end		or
section 27(1), after "functions to"		one or more of the following
section 27(1)(c)	; or	of the Government owned corporation;
section 27(2), after "advise the"		Government owned corporation's
section 31(1)	shares of a	shares of the
section 31(2)	The of a	The Government owned corporation's of the
section 32(1)	Minister of a	Minister of a Government owned corporation of the
section 32(2)	of a	of the
section 32(2)(a), at the end		and
section 32(2)(b)	of the corporation
section 32(3)	of a	of the
section 35(1), after "of the"		Government owned corporation's
section 35(2)	Minister by a	Minister of a Government owned corporation by the
section 37(1), (2), (3)(a) and (b) and (4)(c), before "shareholding"		Government owned corporation's
section 37(4)(d)	shareholding Minister and the board of the Government owned corporation	Government owned corporation's shareholding Minister and its board
section 37(6)	of the corporation
section 38(1) and (2)(a) and (b), before "shareholding"		Government owned corporation's
section 38(3)	of the corporation
section 39(1), after "to the"		Government owned corporation's
section 39(2)(a), at the end		and
section 39(4)	a statement	the statement
section 39(7)(a)	for a	for the
section 40(f), after "by the"		Government owned corporation's
section 40(i)	shareholding Minister and the board of the corporation	Government owned corporation's shareholding Minister and board
section 41(1)	shareholding Minister, give to the shareholding Minister and the	Government owned corporation's shareholding Minister, give to its shareholding Minister and
section 42(2), after "by the"		Government owned corporation's
section 44(2)(a), at the end		and
section 44(2)(c), after "by the"		Government owned corporation's
section 44(4)	A Government shareholding (first reference)	The Government Government owned corporation's shareholding
section 45(2)	*Board*	*board*
section 46(1), after "Minister"		of a Government owned corporation
section 46(5)	Minister to a	Minister of a Government owned corporation to the
section 50(2)	power:	following powers:
section 50(2)(f)	and
section 51(2)(a), at the end		or
section 51(2)(b)	and	or
section 51(3)(b)	the Act by which the Government owned corporation is incorporated	the Government owned corporation's constituting Act
section 51(8), after "between the"		Government owned corporation's
section 52(1)(a), at the end		and
section 52(1)(b)	the Act by or under which it was established or continued in existence the transaction;	its constituting Act into the transaction; and
section 52(1)(c)	the Act by or under which it was established or continued in existence	its constituting Act
section 52(2)(a) and (b) and (3)	he or she	the person
section 54(b), after "personally to"		the chief executive officer or

Provision	Amendment
	omit	insert
*Commercial And Private Agents Licensing Act*
after section 4(1)(c)		(ca) an employee of the Power Retail Corporation established under the Power Retail Corporation Act while acting in the performance of his or her functions as such an employee; or
*Electrical Workers And Contractors Act*
section 4, definition *Corporation*	whole definition
section 4		(in alphabetical order) *Power and Water Corporation* means the Power and Water Corporation established by the Power and Water Corporation Act. *Power Generation Corporation* means the Power Generation Corporation established by the Power Generation Corporation Act.
sections 4, definitions *electrical installation* and *electrical work, paragraph (b), 15(2) and 17C(c) and (f), before "Corporation" (all references)*		Power and Water
section 42, heading	Corporation	Corporations
sections 42(1) and (2) and 43(1)(c) and (g) and (2)(e)	Corporation (all references)	Power and Water Corporation or Power Generation Corporation
*Essential Goods and Services Act*
section 2(1), definition *service*, paragraph (a)(iv)	under the Electricity Reform Act or the Power and Water Corporation Act	by electricity entities (as defined in the Electricity Reform Act)
*Ombudsman Act*
section 5(c)	whole paragraph	(c) a Government owned corporation; or
*Public Sector Employment and Management Regulations*
Schedule 1, item 2, after "Corporation"		, Power Generation Corporation or Power Retail Corporation
*Superannuation Regulations*
Schedule, after item 13		13A Power Generation Corporation Power Generation Corporation Act 13B Power Retail Corporation Power Retail Corporation Act

Northern Territory Bills

POWER AND WATER CORPORATION LEGISLATION AMENDMENT BILL 2014