Queensland Bills Queensland Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
GOVERNMENT OWNED
CORPORATIONS BILL 1993
Queensland
GOVERNMENT OWNED
CORPORATIONS BILL 1993
TABLE OF CONTENTS
CHAPTER 1--PRELIMINARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Part 1--Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Part 2--Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Part 3--Basic concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Part 4--Operation of Act and application of laws . . . . . . . . . . . . . . . . . . . . 22
Part 5--Outline of Act and its background and objectives . . . . . . . . . . . . . 24
CHAPTER 2--MECHANISMS FOR CREATING AND ALTERING
TYPES OF GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Part 1--Outline of the processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Part 2--Nomination of entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Part 3--Preparation of corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . 30
Division 1--Preliminary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Division 2--Responsible Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Division 3--Draft corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . . . 32
Division 4--Charter preparation committee . . . . . . . . . . . . . . . . . . . . . . . 34
Division 5--Corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Part 4--Implementation of corporatisation charter . . . . . . . . . . . . . . . . . . . . 36
Part 5--Corporatisation facilitative mechanisms . . . . . . . . . . . . . . . . . . . . . 38
Part 6--Candidate GOCs becoming GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . 45
CHAPTER 3--GOVERNMENT OWNED CORPORATIONS (GOCs) . . . . . . . . . . 46
Part 1--Basic requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2
Government Owned Corporations
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Part 2--Application of Corporations Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Part 3--Shares and shareholding Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Division 3--GOCs generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Part 4--Memorandum and articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Part 5--Board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Part 6--Chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Part 7--Corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 1--General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 2--Preparation, agreement on and modification of
corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Part 8--Statement of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 1--General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 2--Matters to be included in statement of corporate intent . . . 60
Division 3--Preparation, agreement on and modification of
statement of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Part 9--Community service obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Part 10--General reserve powers of shareholding Ministers . . . . . . . . . . . . 66
Part 11--Reports and other accountability matters . . . . . . . . . . . . . . . . . . . 68
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
3
Government Owned Corporations
Division 3--GOCs generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Part 12--Duties and liabilities of directors and other officers . . . . . . . . . . . 72
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Division 3--GOCs generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Part 13--Legal capacity and powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Division 1--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Division 2--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Part 14--Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 1--Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 2--Borrowings and guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Division 3--Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Part 15--Acquisition and disposal of assets and subsidiaries . . . . . . . . . . . 95
Part 16--Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Division 1--Application of Part to GOC subsidiaries . . . . . . . . . . . . . . . 96
Division 2--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Division 3--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Division 4--GOCs generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Part 17--Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Division 1--GOCs generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Division 2--Statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Division 3--Company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
CHAPTER 4--MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Schedule 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Additional provisions relating to board of statutory GOC . . . . . . . . . . . 107
Schedule 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Additional provisions relating to chief executive officer of
statutory GOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
4
Government Owned Corporations
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTION
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
PART 2--INTERPRETATION
3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4 References to doing of act by GOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
PART 3--BASIC CONCEPTS
5 Meaning of "government entity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6 Meaning of "GOC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7 Types of GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8 GOC and portfolio Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9 Meaning of "statement of corporate intent" . . . . . . . . . . . . . . . . . . . . . . . . . 21
PART 4--OPERATION OF ACT AND APPLICATION OF LAWS
10 Act binds State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11 Extraterritorial operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12 Application of other laws to GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13 Application of other laws to candidate GOCs . . . . . . . . . . . . . . . . . . . . . . . . 23
14 How Corporations Law is to be applied to GOCs . . . . . . . . . . . . . . . . . . . . . 23
PART 5--OUTLINE OF ACT AND ITS BACKGROUND AND
OBJECTIVES
15 What Act provides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
16 Meaning of "corporatisation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
17 Objectives of corporatisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
18 How objectives of corporatisation are to be achieved--key
principles and their elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
19 Meaning of "key principles of corporatisation" . . . . . . . . . . . . . . . . . . . . . . 25
20 Key objectives of GOC under corporatisation . . . . . . . . . . . . . . . . . . . . . . . . 27
21 How Act will enable management of the corporatisation process . . . . . . . . 27
5
Government Owned Corporations
CHAPTER 2--MECHANISMS FOR CREATING AND
ALTERING TYPES OF GOCs
PART 1--OUTLINE OF THE PROCESSES
22 What this Part provides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
23 Government entity must first become a candidate GOC . . . . . . . . . . . . . . . 28
24 Meaning of "candidate GOC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
25 Meaning of "government entity that is to become a GOC" etc. . . . . . . . . . 29
PART 2--NOMINATION OF ENTITIES
26 Nomination of government entity to become candidate GOC . . . . . . . . . . . 29
27 Nomination of statutory GOC etc. to become company GOC . . . . . . . . . . . 29
PART 3--PREPARATION OF CORPORATISATION CHARTER
Division 1--Preliminary
28 Meaning of "corporatisation charter" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
29 Candidate GOC may become GOC following corporatisation charter . . . . 30
30 Candidate GOC may change its type to company GOC following
corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Division 2--Responsible Ministers
31 Responsible Ministers of candidate GOC that is not existing GOC . . . . . . 31
32 Responsible Ministers not directors etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
33 Shareholding Ministers are responsible Ministers for existing GOC . . . . . . 31
Division 3--Draft corporatisation charter
34 Responsible Ministers may determine that draft corporatisation
charter be prepared and submitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
35 Matters to be included in draft corporatisation charter . . . . . . . . . . . . . . . . . 32
36 Responsible Ministers may determine other matters relevant to
draft corporatisation charter preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
37 Responsible Ministers may give directions to candidate GOC
about charter preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Division 4--Charter preparation committee
38 Charter preparation committee may be appointed . . . . . . . . . . . . . . . . . . . . 34
39 Conduct of meetings and other business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
40 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
41 Resignation and removal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
42 Draft corporatisation charter to be given to responsible Ministers . . . . . . . 35
6
Government Owned Corporations
Division 5--Corporatisation charter
43 Approval of draft corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
44 Approval of amendments of corporatisation charter . . . . . . . . . . . . . . . . . . . 36
PART 4--IMPLEMENTATION OF CORPORATISATION
CHARTER
45 Charter administration committee may be appointed . . . . . . . . . . . . . . . . . . 36
46 Conduct of meetings and other business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
47 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
48 Resignation and removal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
49 Responsible Ministers may give directions to candidate GOC
about charter implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
PART 5--CORPORATISATION FACILITATIVE MECHANISMS
50 Purpose of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
51 Unincorporated entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
52 Entities that are corporations sole or corporations aggregate . . . . . . . . . . . . 39
53 Entities that are parts of bodies corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
54 Transfer of assets, liabilities etc. in certain cases . . . . . . . . . . . . . . . . . . . . 40
55 Memorandum and articles of candidate GOC . . . . . . . . . . . . . . . . . . . . . . . . 41
56 Existing board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
57 Interim board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
58 Share capital and issue of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
59 Variation of share capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
60 Registration under Corporations Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
61 Part does not affect existing legal relationships . . . . . . . . . . . . . . . . . . . . . . 44
62 Regulations may deal with other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
PART 6--CANDIDATE GOCs BECOMING GOCs
63 Declaration of entity as GOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
64 Declaration does not affect legal personality etc. . . . . . . . . . . . . . . . . . . . . . 46
CHAPTER 3--GOVERNMENT OWNED CORPORATIONS
(GOCs)
PART 1--BASIC REQUIREMENTS
Division 1--Statutory GOCs
65 Statutory GOC must be body corporate etc. . . . . . . . . . . . . . . . . . . . . . . . . . 46
7
Government Owned Corporations
Division 2--Company GOCs
66 Company GOC must be public company limited by shares . . . . . . . . . . . . . 46
PART 2--APPLICATION OF CORPORATIONS LAW
Division 1--Statutory GOCs
67 Application of Corporations Law to statutory GOCs . . . . . . . . . . . . . . . . . . . 47
68 Statutory GOC exempt public authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 2--Company GOCs
69 Application of Corporations Law to company GOCs . . . . . . . . . . . . . . . . . . 47
70 Company GOC not exempt public authority . . . . . . . . . . . . . . . . . . . . . . . . . 47
PART 3--SHARES AND SHAREHOLDING MINISTERS
Division 1--Statutory GOCs
71 Number of shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
72 Shareholders must have equal number of shares and equal rights . . . . . . . . 48
73 Shareholders must be GOC and portfolio Ministers . . . . . . . . . . . . . . . . . . . 48
74 Meaning of "shareholding Minister" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
75 Variation of share capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Division 2--Company GOCs
76 Number of shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
77 Number of voting and non-voting shareholders . . . . . . . . . . . . . . . . . . . . . . . 49
78 Voting shareholders must have equal number of shares and voting
rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
79 Shareholders must be certain Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
80 Meaning of "shareholding Ministers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
81 Resolutions without meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Division 3--GOCs generally
82 Shareholders hold shares for State etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
83 Transfer, issue etc. of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
84 Shareholding Ministers must act jointly . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
85 Ministers not directors etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
PART 4--MEMORANDUM AND ARTICLES
Division 1--Statutory GOCs
86 Shareholding Ministers of statutory GOC may require amendment
of subsidiary's memorandum and articles . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8
Government Owned Corporations
87 Memorandum and articles of subsidiary of statutory GOC must
not be inconsistent with Act or Corporations Law . . . . . . . . . . . . . . . . . . . . 52
Division 2--Company GOCs
88 Memorandum and articles of company GOC may be amended by
shareholding Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
89 Shareholding Ministers of company GOC may require
amendment of subsidiary's memorandum and articles . . . . . . . . . . . . . . . . . 53
90 Memorandum and articles of company GOC and its subsidiaries
must not be inconsistent with Act or Corporations Law . . . . . . . . . . . . . . . . 53
PART 5--BOARD OF DIRECTORS
Division 1--Statutory GOCs
91 Statutory GOC to have board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
92 Role of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
93 Delegation by board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
94 Additional provisions relating to board--Schedule 1 . . . . . . . . . . . . . . . . . . 55
Division 2--Company GOCs
95 Role of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
96 Composition of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
PART 6--CHIEF EXECUTIVE OFFICER
Division 1--Statutory GOCs
97 Statutory GOC to have chief executive officer . . . . . . . . . . . . . . . . . . . . . . . 56
98 Duties of chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
99 Things done by chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
100 Delegation by chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
101 Additional provisions relating to chief executive officer--Schedule 2 . . . . 56
Division 2--Company GOCs
102 Appointment of chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
PART 7--CORPORATE PLAN
Division 1--General
103 GOC must have corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
104 Corporate plan to apply to subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
105 Guidelines in relation to corporate plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9
Government Owned Corporations
Division 2--Preparation, agreement on and modification of
corporate plan
106 Draft corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
107 Special procedures in relation to draft corporate plan . . . . . . . . . . . . . . . . . 58
108 Corporate plan on agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
109 Corporate plan pending agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
110 Modifications of corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
PART 8--STATEMENT OF CORPORATE INTENT
Division 1--General
111 GOC must have statement of corporate intent . . . . . . . . . . . . . . . . . . . . . . . 60
112 Statement of corporate intent to apply to subsidiaries . . . . . . . . . . . . . . . . . 60
113 Statement of corporate intent must be consistent with corporate plan . . . . 60
Division 2--Matters to be included in statement of corporate intent
114 Matters to be included in statement of corporate intent . . . . . . . . . . . . . . . . 60
115 Additional matters to be included in statement of corporate intent . . . . . . 61
Division 3--Preparation, agreement on and modification of
statement of corporate intent
116 Draft statement of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
117 Special procedures in relation to draft statement of corporate intent . . . . . 62
118 Statement of corporate intent on agreement . . . . . . . . . . . . . . . . . . . . . . . . . 63
119 Statement of corporate intent pending agreement . . . . . . . . . . . . . . . . . . . . 63
120 Modifications of statement of corporate intent . . . . . . . . . . . . . . . . . . . . . . . 64
PART 9--COMMUNITY SERVICE OBLIGATIONS
121 Meaning of "community service obligations" . . . . . . . . . . . . . . . . . . . . . . . . 64
122 Community service obligations to be specified in statement of
corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
PART 10--GENERAL RESERVE POWERS OF
SHAREHOLDING MINISTERS
123 Reserve power of shareholding Ministers to notify board of public
sector policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
124 Reserve power of shareholding Ministers to give directions in
public interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
125 Notice of suspected insolvency because of direction or notification . . . . . 67
126 GOC and board not otherwise subject to government direction . . . . . . . . . . 68
10
Government Owned Corporations
PART 11--REPORTS AND OTHER ACCOUNTABILITY
MATTERS
Division 1--Statutory GOCs
127 Application of Financial Administration and Audit Act . . . . . . . . . . . . . . . . 68
Division 2--Company GOCs
128 Application of Financial Administration and Audit Act . . . . . . . . . . . . . . . . 69
129 Application of Public Accounts Committee Act . . . . . . . . . . . . . . . . . . . . . . 69
Division 3--GOCs generally
130 Quarterly reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
131 Matters to be included in annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
132 Deletion of commercially sensitive matters from annual report etc. . . . . . . 71
133 Board to keep shareholding Ministers informed . . . . . . . . . . . . . . . . . . . . . . 72
PART 12--DUTIES AND LIABILITIES OF DIRECTORS AND
OTHER OFFICERS
Division 1--Statutory GOCs
134 Disclosure of interests by directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
135 Voting by interested director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
136 Duty and liability of certain officers of statutory GOC . . . . . . . . . . . . . . . . . 73
137 Prohibition on loans to directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
138 Statutory GOC not to indemnify officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
139 Statutory GOC not to pay premiums for certain liabilities of officers . . . . . 77
140 Director's duty to prevent insolvent trading . . . . . . . . . . . . . . . . . . . . . . . . . . 78
141 Court may order compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
142 Examination of persons concerned with statutory GOCs . . . . . . . . . . . . . . . 79
143 Power to grant relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
144 False or misleading information or documents . . . . . . . . . . . . . . . . . . . . . . . 83
Division 2--Company GOCs
145 Application of Corporations Law to officers of company GOC . . . . . . . . . . 84
Division 3--GOCs generally
146 Application of Corporations Law to officers of subsidiaries of GOCs . . . . . 84
147 Notice of suspected insolvency otherwise than because of
direction or notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11
Government Owned Corporations
PART 13--LEGAL CAPACITY AND POWERS
Division 1--Statutory GOCs
148 Objects of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
149 General powers of statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
150 Restrictions on powers of statutory GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
151 Persons having dealings with statutory GOCs etc. . . . . . . . . . . . . . . . . . . . . 88
Division 2--Company GOCs
152 General powers of company GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
153 Doctrine of ultra vires etc. not revived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
PART 14--FINANCE
Division 1--Taxation
154 Liability to State taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
155 Liability for Commonwealth tax equivalents . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 2--Borrowings and guarantees
156 Application of the Statutory Bodies Financial Arrangements Act . . . . . . . 92
157 Procedures for borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
158 Guarantees by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Division 3--Dividends
159 Payment of dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
160 Interim dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
PART 15--ACQUISITION AND DISPOSAL OF ASSETS AND
SUBSIDIARIES
161 Reserve power of shareholding Ministers to direct that asset not
be disposed of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
162 Disposal of main undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
163 Acquiring and disposing of subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
PART 16--EMPLOYEES
Division 1--Application of Part to GOC subsidiaries
164 Part applies to subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Division 2--Statutory GOCs
165 Employees of statutory GOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
166 Terms of employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
12
Government Owned Corporations
Division 3--Company GOCs
167 Application of certain Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Division 4--GOCs generally
168 Appointment of senior executives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
169 Arrangements relating to staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
170 Application of Equal Opportunity in Public Employment Act . . . . . . . . . . . 97
171 Employment and industrial relations plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
172 Superannuation schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
173 Superannuation for officers and employees who were previously
officers of the public service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
174 Preservation of leave entitlements of certain former officers and
employees of government entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
175 Right of return to public service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
PART 17--OTHER MATTERS
Division 1--GOCs generally
176 Application of Electoral and Administrative Review Act . . . . . . . . . . . . . 101
177 Application of Parliamentary Commissioner Act . . . . . . . . . . . . . . . . . . . . 101
178 Application of Chapter to subsidiaries of GOCs by regulation . . . . . . . . . 101
Division 2--Statutory GOCs
179 Statutory GOC's seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
180 Authentication of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
181 Judicial notice of certain signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
182 Application of Criminal Justice Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Division 3--Company GOCs
183 Application of Criminal Justice Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
CHAPTER 4--MISCELLANEOUS
184 Monitoring and assessment of GOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
185 Giving of documents to board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
186 Proceedings for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
187 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
13
Government Owned Corporations
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 107
ADDITIONAL PROVISIONS RELATING TO BOARD OF
STATUTORY GOC
PART 1--COMPOSITION OF BOARD
1 Composition of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
2 Chairperson and deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
PART 2--MEETINGS AND OTHER BUSINESS OF BOARD
3 Meaning of "required minimum number" of directors . . . . . . . . . . . . . . . . 107
4 Conduct of meetings and other business . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
5 Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
6 Presiding at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
7 Quorum and voting at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
8 Participation in meetings by telephone etc. . . . . . . . . . . . . . . . . . . . . . . . . 109
9 Resolutions without meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
PART 3--PROVISIONS RELATING TO DIRECTORS
11 Appointment of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
12 Terms of appointment not provided for by Act . . . . . . . . . . . . . . . . . . . . . . 110
13 Appointment of acting director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
14 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
15 Termination of appointment as director . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 112
ADDITIONAL PROVISIONS RELATING TO CHIEF
EXECUTIVE OFFICER OF STATUTORY GOC
1 Appointment of chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
2 Appointment of acting chief executive officer . . . . . . . . . . . . . . . . . . . . . . 112
3 Terms of appointment not provided for by Act . . . . . . . . . . . . . . . . . . . . . . 112
4 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
5 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
1993
A BILL
FOR
An Act to provide for the corporatisation of nominated government
entities and for related purposes
16
Government Owned Corporations
The Parliament of Queensland enacts-- 1
HAPTER 1--PRELIMINARY 2
C
PART 1--INTRODUCTION 3
title 4
Short
This Act may be cited as the Government Owned Corporations 5
Clause1.
Act 1993. 6
7
Commencement
Clause2. This Act commences on a day to be fixed by proclamation. 8
ART 2--INTERPRETATION 9
P
10
Definitions
In this Act-- 11
Clause3.
"articles" means articles of association; 12
"asset" includes property of any kind; 13
"board" of a GOC means the GOC's board of directors; 14
"borrow" includes-- 15
(a) raise money or credit; and 16
(b) obtain financial accommodation; and 17
(c) borrow in a foreign currency; 18
17
Government Owned Corporations
"candidate GOC" has the meaning given by section 24; 1
"Commonwealth tax" means tax imposed under a Commonwealth Act; 2
"community service obligations" has the meaning given by section 121; 3
"company GOC" has the meaning given by section 7(3); 4
"corporatisation" has the meaning given by section 16; 5
"corporatisation charter" of a candidate GOC means-- 6
(a) the draft corporatisation charter approved by the candidate GOC's 7
responsible Ministers as its corporatisation charter; or 8
(b) if the responsible Ministers approve an amendment of the 9
corporatisation charter--the corporatisation charter as amended; 10
"department" means department of government; 11
"financial accommodation" includes a financial benefit, or assistance to 12
obtain a financial benefit, arising from or because of-- 13
(a) a loan; or 14
(b) issuing, endorsing or otherwise dealing in promissory notes; or 15
(c) drawing, accepting, endorsing or otherwise dealing in bills of 16
exchange; or 17
(d) issuing, purchasing or otherwise dealing in securities; or 18
(e) granting or taking a lease of any property for financing purposes; 19
or 20
(f) another arrangement prescribed by regulation; 21
"GOC" (or "government owned corporation") has the meaning given 22
by section 6; 23
"GOC Minister" has the meaning given by section 8; 24
"government company" means a corporation incorporated under the 25
Corporations Law all the stock or shares in the capital of which is or 26
are beneficially owned by the State; 27
"government entity" has the meaning given by section 5; 28
"government entity that is to become a company GOC" has the 29
meaning given by section 25(3); 30
18
Government Owned Corporations
"government entity that is to become a GOC" has the meaning given by 1
section 25(1); 2
"government entity that is to become a statutory GOC" has the 3
meaning given by section 25(2); 4
"government entity that is to become a subsidiary of a GOC" has the 5
meaning given by section 25(4); 6
"instrument" means an instrument of any kind, and includes, for 7
example-- 8
(a) a contract, deed, agreement, arrangement, understanding or 9
undertaking; and 10
(b) a mandate, instruction, notice, authority or order; and 11
(c) a lease, licence, transfer, conveyance or other assurance; and 12
(d) a guarantee, bond, power of attorney, bill of lading, negotiable 13
instrument or order for the payment of money; and 14
(e) a mortgage, charge, lien or security; 15
whether express or implied and whether made or given orally or in 16
writing; 17
"key principles of corporatisation" has the meaning given by section 19; 18
"lease" includes-- 19
(a) a lease, licence, charter or hiring arrangement of property; and 20
(b) an arrangement under which a right to use, operate or provide 21
services in relation to property is granted by the owner to another 22
person; 23
"memorandum" means memorandum of association; 24
"portfolio Minister" has the meaning given by section 8; 25
"proposed subsidiary" of a GOC or candidate GOC means a government 26
entity that is declared by regulation to be a proposed subsidiary of the 27
GOC or candidate GOC; 28
"responsible Ministers" of a candidate GOC has the meaning given by-- 29
(a) if the candidate GOC is not already a statutory GOC or a part of a 30
statutory GOC--section 31; or 31
19
Government Owned Corporations
(b) if the candidate GOC is already a statutory GOC or a part of a 1
statutory GOC--section 33; 2
"security" includes inscribed stock, debenture, bond, debenture stock, note 3
and any other document creating, evidencing or acknowledging 4
indebtedness (whether or not constituting a charge on property); 5
"share", in relation to a candidate GOC, a GOC or another corporation, 6
means a share in the corporation's share capital; 7
"shareholding Ministers" of a GOC has the meaning given by-- 8
(a) in the case of a statutory GOC--section 74; or 9
(b) in the case of a company GOC--section 80; 10
"statement of corporate intent" has the meaning given by section 9; 11
"State tax" means tax imposed under an Act; 12
"statutory GOC" has the meaning given by section 7(2); 13
"subsidiary" has the meaning given by the Corporations Law, and 14
includes, in relation to a GOC or candidate GOC, a government entity 15
that is declared by regulation to be a subsidiary of the GOC or 16
candidate GOC; 17
"tax" includes any tax, fee, duty, levy or charge; 18
"terms" of appointment or employment include terms relating to-- 19
(a) remuneration and allowances; and 20
(b) duration of appointment or employment; and 21
(c) termination of appointment or employment. 22
to doing of act by GOC 23
References
In this Act, a reference to the doing of an act by a GOC includes a 24
Clause4.
reference to-- 25
(a) the making or giving of an instrument by the GOC; and 26
(b) the transfer of property by or to the GOC; and 27
(c) the incurring of a liability by the GOC. 28
20
Government Owned Corporations
ART 3--BASIC CONCEPTS 1
P
of "government entity" 2
Meaning
A "government entity" is-- 3
Clause5.
(a) a government company or part of a government company; or 4
(b) a State instrumentality, agency, authority or entity or a division, 5
branch or other part of a State instrumentality, agency, authority 6
or entity; or 7
(c) a department or a division, branch or other part of a department; 8
or 9
(d) an entity prescribed by regulation. 10
eaning of "GOC" 11
M
A "GOC" (or "government owned corporation") is a 12
Clause6.
government entity that is-- 13
(a) established as a body corporate under an Act or the Corporations 14
Law; and 15
(b) declared by regulation to be a GOC. 16
ypes of GOCs 17
T
A GOC may be either a statutory GOC or a company GOC. 18
Clause7.(1)
(2) A "statutory GOC" is a GOC that is established as a body 19
corporate under an Act and is not registered under the Corporations Law. 20
(3) A "company GOC" is a GOC that is incorporated or registered 21
under the Corporations Law. 22
(4) These are not the only differences between a statutory GOC and a 23
company GOC. 24
(5) Another important difference between a statutory GOC and a 25
company GOC is the extent to which the Corporations Law applies. 26
(6) In the case of a statutory GOC, the Corporations Law applies to the 27
GOC only to the extent to which it is expressly applied by regulation. 28
21
Government Owned Corporations
(7) In the case of a company GOC, the Corporations Law applies to the 1
GOC except so far as this Act otherwise provides. 2
and portfolio Ministers 3
GOC
Clause8.(1) The Minister is the "GOC Minister" of every GOC. 4
(2) The Minister who has the duty to administer the legislation (if any) 5
that established, or provides for the structure or management of, the entity 6
that became a GOC is the "portfolio Minister" of the GOC. 7
(3) However, if-- 8
(a) there is not a Minister who is the portfolio Minister under 9
subsection (2); or 10
(b) the portfolio Minister under subsection (2) is the GOC Minister; 11
or 12
(c) the Premier is of the opinion that another Minister should be the 13
portfolio Minister; 14
the "portfolio Minister" of the GOC is the Minister nominated by the 15
Premier by Gazette notice. 16
(4) The Premier must make the nomination by nominating the holder of 17
a particular Ministerial office by reference to the title of the office concerned. 18
(5) The Premier may, in an appropriate case, be nominated under 19
subsection (3) to be the portfolio Minister of the GOC. 20
(6) In this section-- 21
"GOC" includes a candidate GOC. 22
of "statement of corporate intent" 23
Meaning
The "statement of corporate intent" of a GOC is a document 24
Clause9.(1)
created in relation to the GOC under Part 8 of Chapter 3. 25
(2) It is intended that the statement of corporate intent should represent an 26
agreement between the GOC's board of directors and its shareholding 27
Ministers. 28
22
Government Owned Corporations
PART 4--OPERATION OF ACT AND APPLICATION 1
OF LAWS 2
binds State 3
Act
Clause10. This Act binds the State. 4
operation 5
Extraterritorial
It is the intention of Parliament that this Act should apply, as far 6
Clause11.
as possible, to-- 7
(a) land and things outside Queensland (whether in or outside 8
Australia); and 9
(b) acts, transactions and things done, entered into or happening 10
outside Queensland (whether in or outside Australia); and 11
(c) land, things, acts and transactions (wherever situated, done, 12
entered into or happening) that would, apart from this Act, be 13
governed or otherwise affected by the law of another jurisdiction 14
(including a foreign country). 15
of other laws to GOCs 16
Application
Clause12.(1) This Act applies to a GOC despite anything in an Act that was 17
enacted before the commencement of this Act. 18
(2) If there is an inconsistency between this Act and an Act enacted 19
before the commencement of this Act, this Act prevails to the extent of the 20
inconsistency. 21
(3) A regulation may provide that an Act, or a provision of an Act, that-- 22
(a) was enacted before the commencement of this Act; and 23
(b) established a government entity that becomes a GOC or provides 24
for its structure, management, operation or accountability; 25
applies to the GOC with modifications prescribed by regulation. 26
(4) A regulation made for the purposes of subsection (3) expires 27
6 months from the day on which it is notified in the Gazette unless it is 28
23
Government Owned Corporations
earlier repealed or its operation is extended by regulation for a period, or a 1
single further period, of not longer than 6 months. 2
(5) This Act, and any provision of this Act, has effect subject to a 3
provision of an Act enacted after the commencement of this Act that 4
expressly provides that this Act or the provision is subject to it. 5
of other laws to candidate GOCs 6
Application
Chapter 2 applies to a candidate GOC despite anything in an 7
Clause13.(1)
Act that was enacted before the commencement of this Act. 8
(2) If there is an inconsistency between Chapter 2 and an Act enacted 9
before the commencement of this Act, Chapter 2 prevails to the extent of 10
the inconsistency. 11
(3) A regulation may provide that an Act, or a provision of an Act, that-- 12
(a) was enacted before the commencement of this Act; and 13
(b) established a government entity that becomes a candidate GOC or 14
provides for its structure, management, operation or 15
accountability; 16
applies to the candidate GOC with modifications prescribed by regulation. 17
(4) A regulation made for the purposes of subsection (3) expires 18
6 months from the day on which it is notified in the Gazette unless it is 19
earlier repealed or its operation is extended by regulation for a period, or a 20
single further period, of not longer than 6 months. 21
(5) Chapter 2, and any provision of Chapter 2, has effect subject to a 22
provision of an Act enacted after the commencement of this Act that 23
expressly provides that the Chapter or provision is subject to it. 24
Corporations Law is to be applied to GOCs 25
How
If this Act provides that the Corporations Law, or a particular 26
Clause14.
provision of the Corporations Law, applies to a GOC, the Law or provision 27
applies to the GOC, with any necessary modifications and any 28
modifications prescribed by regulation, to the greatest extent possible. 29
24
Government Owned Corporations
PART 5--OUTLINE OF ACT AND ITS 1
BACKGROUND AND OBJECTIVES 2
Act provides 3
What
This Act makes provision for a structural reform process 4
Clause15.
("corporatisation") for nominated government entities. 5
of "corporatisation" 6
Meaning
"Corporatisation" is a structural reform process for nominated 7
Clause16.
government entities that-- 8
(a) changes the conditions and (where required) the structure under 9
which the entities operate so that they operate, as far as 10
practicable, on a commercial basis and in a competitive 11
environment; and 12
(b) provides for the continued public ownership of the entities as part 13
of the process; and 14
(c) allows the State, as owner on behalf of the people of Queensland, 15
to provide strategic direction to the entities by setting financial and 16
non-financial performance targets and community service 17
obligations. 18
of corporatisation 19
Objectives
The objectives of corporatisation are to improve Queensland's 20
Clause17.
overall economic performance, and the ability of the Government to achieve 21
social objectives, by-- 22
(a) improving the efficiency and effectiveness of GOCs; and 23
(b) improving the accountability of GOCs. 24
objectives of corporatisation are to be achieved--key principles 25
How
and their elements 26
The objectives of corporatisation are to be achieved through 27
Clause18.
application of the key principles of corporatisation and their elements. 28
25
Government Owned Corporations
of "key principles of corporatisation" 1
Meaning
The 4 "key principles of corporatisation", and their elements, 2
Clause19.
are as follows-- 3
(a) Principle 1--Clarity of objectives 4
The elements of this principle are that-- 5
· each GOC will have clear, non-conflicting objectives; 6
· each GOC will be set specific financial and non-financial 7
performance targets for its commercial activities; 8
· any activities of a governmental policy formulation or 9
regulatory nature will, or, in the case of a statutory GOC, 10
will wherever possible, be transferred from the GOC to a 11
department, separate regulatory authority or other agency; 12
· any community service obligations of the GOC will be-- 13
·· clearly identified in the GOC's statement of corporate 14
intent; and 15
·· separately costed; 16
· the GOC will be appropriately compensated for its 17
community service obligations and any funding will be 18
made apparent; 19
· the GOC will be set performance targets for its community 20
service obligations; 21
(b) Principle 2--Management autonomy and authority 22
The elements of this principle are that-- 23
· each GOC will have a board of directors; 24
· the board will be required to use its best endeavours to 25
ensure that the GOC meets its performance targets; 26
· the board will be given the autonomy and authority to make 27
commercial decisions within areas of responsibility defined 28
by the corporatisation framework; 29
· existing detailed controls over management decision making 30
will be replaced with strategic monitoring procedures; 31
26
Government Owned Corporations
· the role of Ministers in relation to the GOC will be clearly 1
defined; 2
· Ministerial reserve powers will be required to be exercised in 3
an open way; 4
(c) Principle 3--Strict accountability for performance 5
The elements of this principle are that-- 6
· the GOC's board will be accountable to the shareholding 7
Ministers for the GOC's performance; 8
· the GOC's statement of corporate intent will form the basis 9
for accountability; 10
· performance will be monitored by the Government against 11
performance targets specified in the statement of corporate 12
intent; 13
· Government monitoring of the GOC is intended to 14
compensate for the absence of the wide range of monitoring 15
to which listed corporations are subject by, for example, the 16
sharemarket and Commonwealth regulatory agencies; 17
(d) Principle 4--Competitive neutrality 18
The elements of this principle are that-- 19
· the efficiency of overall resource use in the State is promoted 20
by ensuring that markets are not unnecessarily distorted; 21
· in order to ensure, wherever possible, that each GOC 22
competes on equal terms with the private sector and any 23
special advantages or disadvantages of the GOC because of 24
its public ownership or its market power will be removed, 25
minimised or made apparent; 26
· in circumstances where a GOC has excessive market 27
power-- 28
·· structural reform may be necessary to increase 29
competition; and 30
·· special monitoring may be necessary to prevent market 31
abuse. 32
27
Government Owned Corporations
objectives of GOC under corporatisation 1
Key
Under corporatisation the key objectives of a GOC are to be 2
Clause20.(1)
commercially successful in the conduct of its activities and efficient in the 3
delivery of its community service obligations. 4
(2) The commercial success and efficiency of a GOC are to be measured 5
against its financial and non-financial performance targets. 6
Act will enable management of the corporatisation process 7
How
Clause21.(1) This Act is intended to enable the corporatisation process to be 8
applied-- 9
(a) progressively as government entities move through various 10
stages of the process; and 11
(b) flexibly to achieve consistent outcomes that are appropriate to the 12
broad range of government entities and the stage that they have 13
reached in the corporatisation process. 14
(2) By providing for 2 types of GOCs and otherwise enabling the 15
corporatisation process to be applied progressively and flexibly, the Act 16
allows a choice to be made, both initially and subsequently, about the most 17
appropriate corporatisation structure for a particular government entity. 18
(3) This Act provides, if required, for a transitional stage of 19
corporatisation through preparation and implementation of a corporatisation 20
charter. 21
(4) The Act also imposes accountability and performance monitoring 22
requirements for all GOCs. 23
28
Government Owned Corporations
CHAPTER 2--MECHANISMS FOR CREATING 1
AND ALTERING TYPES OF GOCs 2
ART 1--OUTLINE OF THE PROCESSES 3
P
this Part provides 4
What
Clause22. This Part makes provision for the processes necessary to allow-- 5
(a) government entities to become statutory GOCs and company 6
GOCs; and 7
(b) statutory GOCs and parts of statutory GOCs to become company 8
GOCs; and 9
(c) government entities to become subsidiaries of statutory GOCs 10
and company GOCs. 11
entity must first become a candidate GOC 12
Government
A government entity must become a candidate GOC before 13
Clause23.(1)
becoming a statutory GOC or a company GOC. 14
(2) Similarly, a statutory GOC, or part of a statutory GOC, must again 15
become a candidate GOC before becoming a company GOC. 16
of "candidate GOC" 17
Meaning
A "candidate GOC" is-- 18
Clause24.
(a) a government entity that is nominated under Part 2 to be a 19
candidate GOC; or 20
(b) a statutory GOC, or part of a statutory GOC, that is nominated 21
under Part 2 to be a candidate GOC that is to become a company 22
GOC. 23
29
Government Owned Corporations
of "government entity that is to become a GOC" etc. 1
Meaning
Clause25.(1) A government entity is taken to be a "government entity that 2
is to become a GOC" if it is a candidate GOC. 3
(2) A government entity is taken to be a "government entity that is to 4
become a statutory GOC" if a regulation has declared that it is to become 5
a statutory GOC. 6
(3) A government entity is taken to be a "government entity that is to 7
become a company GOC" if a regulation has declared that it is to become 8
a company GOC. 9
(4) A government entity is taken to be a "government entity that is to 10
become a subsidiary of a GOC" if it is a subsidiary or proposed 11
subsidiary of a candidate GOC. 12
ART 2--NOMINATION OF ENTITIES 13
P
of government entity to become candidate GOC 14
Nomination
The Governor in Council may, by regulation, nominate a 15
Clause26.(1)
government entity that is not already a GOC to be a candidate GOC. 16
(2) To remove any doubt, it is declared that the Governor in Council may 17
nominate 2 or more government entities that are not already GOCs to be a 18
single candidate GOC. 19
(3) This Act applies to entities mentioned in subsection (2) with any 20
necessary modifications and any modifications prescribed by regulation. 21
of statutory GOC etc. to become company GOC 22
Nomination
The Governor in Council may, by regulation, nominate a 23
Clause27.
statutory GOC, or part of a statutory GOC, to be a candidate GOC that is to 24
become a company GOC. 25
30
Government Owned Corporations
ART 3--PREPARATION OF CORPORATISATION 1
P
CHARTER 2
1--Preliminary 3
Division
of "corporatisation charter" 4
Meaning
The "corporatisation charter" of a candidate GOC sets out the 5
Clause28.
steps by which, and the basis on which-- 6
(a) a candidate GOC is to become a GOC or is to change its type to a 7
company GOC; and 8
(b) the key principles of corporatisation, and their elements, are to be 9
implemented. 10
GOC may become GOC following corporatisation charter 11
Candidate
A government entity that is a candidate GOC may become a 12
Clause29.(1)
GOC following the preparation and implementation of a corporatisation 13
charter. 14
(2) However, in appropriate cases a candidate GOC may become a GOC 15
even if-- 16
(a) it has not fully prepared a corporatisation charter; or 17
(b) it has prepared, but has not fully implemented, a corporatisation 18
charter; or 19
(c) it has not prepared or implemented a corporatisation charter. 20
GOC may change its type to company GOC following 21
Candidate
corporatisation charter 22
A candidate GOC that is a statutory GOC, or part of a 23
Clause30.(1)
statutory GOC, may become a company GOC following the preparation 24
and implementation of a corporatisation charter. 25
(2) However, in appropriate cases a statutory GOC, or a part of a 26
statutory GOC, may become a company GOC even if-- 27
31
Government Owned Corporations
(a) it has not fully prepared a corporatisation charter; or 1
(b) it has prepared, but has not fully implemented, a corporatisation 2
charter; or 3
(c) it has not prepared or implemented a corporatisation charter. 4
Division 2--Responsible Ministers 5
Ministers of candidate GOC that is not existing GOC 6
Responsible
This section applies to a candidate GOC that is not a statutory 7
Clause31.(1)
GOC or a part of a statutory GOC. 8
(2) The GOC Minister and the portfolio Minister of the candidate GOC 9
are its responsible Ministers. 10
Ministers not directors etc. 11
Responsible
The responsible Ministers of a candidate GOC are not to be 12
Clause32.(1)
treated as directors of the candidate GOC or any subsidiary or proposed 13
subsidiary of the candidate GOC. 14
(2) A Minister does not incur civil liability for an act or omission done or 15
omitted to be done honestly and without negligence under, or for the 16
purposes of, this Act in relation to a government entity that is to become a 17
GOC or a subsidiary of a GOC. 18
(3) A liability that would, apart from subsection (2), attach to a Minister 19
attaches instead to the State. 20
(4) This section has effect despite the Corporations Law. 21
Ministers are responsible Ministers for existing GOC 22
Shareholding
This section applies to a candidate GOC that is a statutory 23
Clause33.(1)
GOC or a part of a statutory GOC. 24
(2) The shareholding Ministers of the GOC are the candidate GOC's 25
responsible Ministers. 26
32
Government Owned Corporations
3--Draft corporatisation charter 1
Division
Ministers may determine that draft corporatisation 2
Responsible
charter be prepared and submitted 3
If the responsible Ministers of a candidate GOC consider that 4
Clause34.(1)
the preparation and implementation of a corporatisation charter would 5
facilitate the corporatisation process for the candidate GOC, the Ministers 6
may determine a draft corporatisation charter should be prepared and 7
submitted to the Ministers. 8
(2) If the Ministers determine that a draft corporatisation charter should 9
be prepared and submitted to the Ministers, the following provisions of this 10
Division apply. 11
to be included in draft corporatisation charter 12
Matters
The responsible Ministers may determine that the draft 13
Clause35.(1)
corporatisation charter should contain all or any of the following matters-- 14
(a) an outline of how the key principles of corporatisation and their 15
elements are to be applied to the candidate GOC and a timetable 16
for their application; 17
(b) if the candidate GOC is not already a GOC--a recommendation 18
whether the candidate GOC should initially become a statutory 19
GOC or company GOC and an outline of the reasons for the 20
recommendation; 21
(c) an outline of any legislation under which the candidate GOC is to 22
operate when it becomes a GOC; 23
(d) target dates for the enactment and commencement of any 24
legislation; 25
(e) a timetable for the adoption of appropriate systems of accounting 26
by the candidate GOC; 27
(f) a timetable for the adoption of commercial management and 28
performance systems by the candidate GOC; 29
(g) a timetable and method for valuing the assets of the candidate 30
GOC and determining its capital structure; 31
33
Government Owned Corporations
(h) recommendations regarding the activities the candidate GOC 1
should undertake before it becomes a GOC; 2
(i) any other matter specified by the responsible Ministers. 3
(2) The responsible Ministers may also determine that the draft 4
corporatisation charter should contain a timetable for-- 5
(a) identifying any existing activities of the candidate GOC of a 6
policy formulation or regulatory nature; and 7
(b) identifying options for transferring the activities from the 8
candidate GOC to a department, separate regulatory authority or 9
other agency; and 10
(c) identifying any other community service obligations of the 11
candidate GOC; and 12
(d) a timetable for costing any community service obligations of the 13
candidate GOC. 14
Ministers may determine other matters relevant to draft 15
Responsible
corporatisation charter preparation 16
Clause36.(1) The responsible Ministers may determine-- 17
(a) steps to be taken in preparing the draft corporatisation charter; and 18
(b) any other matter with respect to the preparation of the draft 19
corporatisation charter. 20
(2) Without limiting subsection (1), the responsible Ministers may 21
determine that specified assumptions are to be made in preparing the draft 22
corporatisation charter, including, for example, if the candidate GOC is not 23
already a GOC, the assumption that the candidate GOC will become a 24
statutory GOC or a company GOC. 25
(3) Without limiting subsection (1), the responsible Ministers may 26
determine a timetable or time limit for the preparation of the draft 27
corporatisation charter. 28
34
Government Owned Corporations
Ministers may give directions to candidate GOC about 1
Responsible
charter preparation 2
The responsible Ministers of the candidate GOC may give the 3
Clause37.(1)
candidate GOC written directions in relation to the candidate GOC and its 4
subsidiaries that appear to them to be necessary or desirable to enable the 5
draft corporatisation charter to be prepared. 6
(2) Without limiting subsection (1), if a charter preparation committee 7
has been appointed to prepare the draft corporatisation charter for the 8
candidate GOC, the responsible Ministers may direct the candidate GOC-- 9
(a) to give to the committee information about the candidate GOC 10
and its subsidiaries that the committee considers necessary or 11
desirable for the preparation of the draft charter; or 12
(b) to permit the committee to have access to records and other 13
documents about the candidate GOC and its subsidiaries that the 14
committee considers necessary or desirable for the preparation of 15
the draft charter; or 16
(c) to take steps that the committee considers necessary or desirable 17
for the preparation of the draft charter. 18
(3) The candidate GOC must ensure that a direction given to it under this 19
section is complied with in relation to itself and must, as far as practicable, 20
ensure that it is also complied with in relation to its subsidiaries. 21
(4) In this section-- 22
"subsidiary" includes proposed subsidiary. 23
Division 4--Charter preparation committee 24
preparation committee may be appointed 25
Charter
The responsible Ministers of a candidate GOC may appoint a 26
Clause38.
charter preparation committee to prepare a draft corporatisation charter for 27
the candidate GOC. 28
35
Government Owned Corporations
of meetings and other business 1
Conduct
The charter preparation committee of a candidate GOC may 2
Clause39.(1)
conduct its business (including its meetings) in the way that it considers 3
appropriate. 4
(2) However, the committee must comply with any direction given to it, 5
and any determination made, by the responsible Ministers. 6
of appointment 7
Terms
A member of the charter preparation committee of a candidate 8
Clause40.
GOC holds office on any terms of appointment determined by the 9
responsible Ministers. 10
and removal from office 11
Resignation
Clause41.(1) A member of the charter preparation committee of a candidate 12
GOC may resign by signed notice given to the responsible Ministers. 13
(2) The responsible Ministers may terminate the appointment of a 14
member of the charter preparation committee for any reason or none. 15
corporatisation charter to be given to responsible Ministers 16
Draft
When the charter preparation committee of a candidate GOC 17
Clause42.(1)
has prepared the candidate GOC's draft corporatisation charter, the 18
committee must give a copy of the draft charter to the responsible 19
Ministers. 20
(2) The responsible Ministers may return the draft charter to the 21
committee and request it to-- 22
(a) consider or further consider any matter and deal with the matter in 23
the draft charter; and 24
(b) revise the draft charter in the light of its consideration or further 25
consideration. 26
36
Government Owned Corporations
Division 5--Corporatisation charter 1
of draft corporatisation charter 2
Approval
The responsible Ministers of a candidate GOC may approve a 3
Clause43.(1)
draft corporatisation charter as the candidate GOC's corporatisation charter. 4
(2) Subsection (1) applies to a draft corporatisation charter whether or not 5
the draft corporatisation charter was prepared by a charter preparation 6
committee appointed for the candidate GOC. 7
of amendments of corporatisation charter 8
Approval
The responsible Ministers of a candidate GOC may approve an 9
Clause44.
amendment of the candidate GOC's corporatisation charter. 10
ART 4--IMPLEMENTATION OF 11
P
CORPORATISATION CHARTER 12
administration committee may be appointed 13
Charter
The responsible Ministers of a candidate GOC may appoint a 14
Clause45.
charter administration committee to ensure that the candidate GOC's 15
corporatisation charter is implemented in a timely, efficient and effective 16
way. 17
of meetings and other business 18
Conduct
Clause46.(1) The charter administration committee of a candidate GOC may 19
conduct its business (including its meetings) in the way that it considers 20
appropriate. 21
(2) However, the committee must comply with any direction given to it, 22
and any determination made, by the responsible Ministers. 23
37
Government Owned Corporations
of appointment 1
Terms
Clause47. A member of the charter administration committee of a candidate 2
GOC holds office on any terms of appointment determined by the 3
responsible Ministers. 4
and removal from office 5
Resignation
A member of the charter administration committee of a 6
Clause48.(1)
candidate GOC may resign by signed notice given to the responsible 7
Ministers. 8
(2) The responsible Ministers may terminate the appointment of a 9
member of the charter administration committee for any reason or none. 10
Ministers may give directions to candidate GOC about 11
Responsible
charter implementation 12
The responsible Ministers of a candidate GOC may give the 13
Clause49.(1)
candidate GOC written directions in relation to the candidate GOC and its 14
subsidiaries that appear to them to be necessary or desirable to enable the 15
candidate GOC's corporatisation charter to be implemented. 16
(2) Without limiting subsection (1), if a charter administration committee 17
has been appointed for the candidate GOC, the responsible Ministers may 18
direct the candidate GOC-- 19
(a) to give to the committee information about the candidate GOC 20
and its subsidiaries that the committee considers necessary or 21
desirable for the implementation of the candidate GOC's 22
corporatisation charter; or 23
(b) to permit the committee to have access to records and other 24
documents about the candidate GOC and its subsidiaries that the 25
committee considers necessary or desirable for the 26
implementation of the candidate GOC's corporatisation charter; 27
or 28
(c) to take steps that the committee considers necessary or desirable 29
for the implementation of the candidate GOC's corporatisation 30
charter. 31
(3) The candidate GOC must ensure that a direction given to it under this 32
38
Government Owned Corporations
section is complied with in relation to itself and must, as far as practicable, 1
ensure that it is also complied with in relation to its subsidiaries. 2
(4) In this section-- 3
"subsidiary" includes proposed subsidiary. 4
ART 5--CORPORATISATION FACILITATIVE 5
P
MECHANISMS 6
of Part 7
Purpose
This Part provides mechanisms to facilitate the corporatisation 8
Clause50.
process by enabling, among other things-- 9
(a) a government entity that is a candidate GOC to be in a suitable 10
legal form to become a GOC; or 11
(b) a statutory GOC, or part of a statutory GOC, to become a 12
company GOC; or 13
(c) a government entity, other than a government entity that is to 14
become a GOC, to become a subsidiary of a GOC. 15
entities 16
Unincorporated
If a government entity that is not a body corporate is to 17
Clause51.(1)
become a GOC or a subsidiary of a GOC, a regulation may provide that, on 18
a specified day, the entity-- 19
(a) becomes a body corporate; and 20
(b) has the name specified by regulation; and 21
(c) has a seal; and 22
(d) may sue and be sued in its corporate name; and 23
(e) has the functions and powers specified by regulation. 24
(2) A regulation may make provision with respect to any matter for 25
which it is necessary or convenient to make provision to facilitate the 26
39
Government Owned Corporations
change of the entity from a government entity that is not a body corporate to 1
a body corporate that is to become a GOC or a subsidiary of a GOC. 2
that are corporations sole or corporations aggregate 3
Entities
If a government entity that is a corporation sole or a 4
Clause52.(1)
corporation aggregate (other than under the Corporations Law) is to become 5
a GOC or a subsidiary of a GOC, a regulation may provide that, on a 6
specified day, the person or persons constituting the entity go out of office. 7
(2) The regulation does not affect-- 8
(a) the legal personality of the entity; or 9
(b) its functions and powers. 10
(3) The vacation of office by the person or persons constituting the entity 11
does not of itself give rise to a right to compensation unless a regulation 12
otherwise provides. 13
(4) A regulation may make provision with respect to any matter for 14
which it is necessary or convenient to make provision to facilitate the 15
change of the entity from a corporation sole or corporation aggregate to a 16
body corporate that is to become a GOC or a subsidiary of a GOC. 17
(5) This section does not apply to a government entity to which 18
section 53 (Entities that are parts of bodies corporate) applies. 19
that are parts of bodies corporate 20
Entities
This section applies to a government entity that is part of a 21
Clause53.(1)
body corporate and is to become a GOC or a subsidiary of a GOC. 22
(2) The body corporate mentioned in subsection (1) may be a body 23
corporate that is-- 24
(a) registered under the Corporations Law; or 25
(b) a statutory GOC; or 26
(c) a corporation sole; or 27
(d) a corporation aggregate; or 28
(e) any other form of body corporate. 29
40
Government Owned Corporations
(3) If this section applies to a government entity, a regulation may make 1
provision with respect to any matter for which it is necessary or convenient 2
to make provision-- 3
(a) to facilitate the change of the entity from a government entity that 4
is part of a body corporate to a body corporate in its own right 5
that is to become a GOC or a subsidiary of a GOC; and 6
(b) to make provision for other parts of the body corporate. 7
(4) Without limiting subsection (3), a regulation may make provision 8
with respect to any matter for which provision is made by, or about which a 9
regulation may be made under-- 10
(a) section 51 (Unincorporated entities), even though the government 11
entity concerned is part of a corporation; and 12
(b) section 52 (Entities that are corporations sole or corporations 13
aggregate), whether or not the government entity concerned is a 14
corporation sole or corporation aggregate. 15
of assets, liabilities etc. in certain cases 16
Transfer
If-- 17
Clause54.
(a) a government entity is to become a GOC or a subsidiary of a 18
GOC; and 19
(b) any of the following subparagraphs apply to the entity-- 20
(i) the entity is not a body corporate; 21
(ii) the entity is a part of a body corporate; 22
(iii) a regulation declares that this section applies to the entity; 23
the regulations may make provision with respect to-- 24
(c) whether and, if so, the extent to which the entity is the successor 25
in law of a particular person; and 26
(d) the assets and liabilities that are, or are not, assets and liabilities of 27
the entity; and 28
(e) the instruments that are, or are not, to apply to the entity, 29
including whether or not the instruments are taken to be 30
instruments-- 31
41
Government Owned Corporations
(i) to which the entity is a party; or 1
(ii) that were given to, by or in favour of the entity; or 2
(iii) in which a reference is made to the entity; or 3
(iv) under which any money is or may become payable, or any 4
other property is to be, or may become liable to be, 5
transferred, conveyed or assigned, to or by the entity; and 6
(f) the proceedings to which the entity becomes a party in 7
substitution for another person; and 8
(g) the existing officers and employees of the entity and their rights. 9
and articles of candidate GOC 10
Memorandum
The responsible Ministers of a government entity that is to 11
Clause55.(1)
become a company GOC may-- 12
(a) adopt a memorandum and articles for the entity; and 13
(b) amend the memorandum and articles previously adopted. 14
(2) The memorandum and articles must not be inconsistent with this Act 15
or the Corporations Law. 16
(3) However, if there is any inconsistency between this Act and the 17
Corporations Law regarding the memorandum and articles, this Act 18
prevails to the extent of the inconsistency. 19
(4) If there is any inconsistency between this Act and the memorandum 20
and articles, this Act prevails to the extent of the inconsistency. 21
(5) If there is any inconsistency between the Corporations Law and the 22
memorandum and articles, then, subject to subsection (3), the Corporations 23
Law prevails to the extent of the inconsistency. 24
(6) This section applies to a government entity that is to become a 25
subsidiary of a GOC as if-- 26
(a) the entity were a government entity that is to become a company 27
GOC; and 28
(b) the responsible Ministers of the government entity of which it is 29
to become a subsidiary were also its responsible Ministers. 30
42
Government Owned Corporations
board of directors 1
Existing
If a candidate GOC has a board of directors or an equivalent 2
Clause56.
body, it is the role of the board or body-- 3
(a) to take the steps that the responsible Ministers direct regarding the 4
implementation of the candidate GOC's corporatisation charter; 5
and 6
(b) to ensure that the candidate GOC otherwise performs its 7
functions in a proper, efficient and effective way. 8
board of directors 9
Interim
Clause57.(1) If a government entity that is to become a GOC or a subsidiary 10
of a GOC does not have a board of directors or an equivalent body, a 11
regulation may provide that, on a specified day, the entity is to have an 12
interim board of directors. 13
(2) It is the role of the interim board-- 14
(a) to take the steps that the responsible Ministers direct regarding the 15
implementation of the entity's corporatisation charter; and 16
(b) to ensure that the entity otherwise performs its functions in a 17
proper, efficient and effective way. 18
(3) Schedule 1 applies to the entity, with any necessary modifications and 19
any modifications prescribed by regulation, as if the entity were a statutory 20
GOC and the interim board of directors were its board of directors. 21
capital and issue of shares 22
Share
If a candidate GOC does not have a share capital, a regulation 23
Clause58.(1)
may provide that, on a specified day, the entity is taken to have a share 24
capital of a specified amount. 25
(2) Before becoming a GOC, the entity must apply the part of its capital 26
that the responsible Ministers direct in paying up, in full, shares in itself. 27
(3) As soon as practicable after complying with subsection (2), the 28
government entity must issue the shares paid up under that subsection. 29
(4) Part 3 of Chapter 3 applies to the entity-- 30
43
Government Owned Corporations
(a) if it is to become a statutory GOC--as if it were a statutory GOC; 1
and 2
(b) if it is to become a company GOC--as if it were a company 3
GOC. 4
(5) Subsections (1) to (3) apply to a government entity (the "intended 5
subsidiary") that is to become a subsidiary of a GOC as if-- 6
(a) the intended entity were a candidate GOC; and 7
(b) the responsible Ministers of the government entity of which it is 8
to become a subsidiary were also its responsible Ministers. 9
(6) The shareholding Ministers may, by written notice to the intended 10
subsidiary, give directions in relation to the issue, holding and transfer of 11
shares paid up under subsection (2). 12
(7) The intended subsidiary must ensure that the directions are complied 13
with. 14
of share capital 15
Variation
Clause59.(1) A regulation may vary the share capital of a candidate GOC. 16
(2) Without limiting subsection (1), a regulation may provide for-- 17
(a) the issue of further shares in a candidate GOC; or 18
(b) the cancellation of issued shares in a candidate GOC; or 19
(c) the consolidation or division of issued shares in a candidate GOC. 20
(3) In this section-- 21
"candidate GOC" includes a government entity that is to become a 22
subsidiary of a GOC. 23
under Corporations Law 24
Registration
If a government entity is to become a company GOC, the 25
Clause60.(1)
entity is authorised by this section to transfer its incorporation to the 26
Corporations Law and become registered under Division 3 of Part 2.2 of 27
the Corporations Law. 28
(2) The responsible Ministers of the entity are authorised to take, and 29
44
Government Owned Corporations
authorise other persons to take, any action necessary or desirable to enable 1
the entity to become registered under Division 3 of Part 2.2 of the 2
Corporations Law. 3
(3) This section applies to a government entity that is to become a 4
subsidiary of a GOC as if-- 5
(a) the entity were a government entity that is to become a company 6
GOC; and 7
(b) the responsible Ministers of the government entity of which it is 8
to become a subsidiary were also its responsible Ministers. 9
does not affect existing legal relationships 10
Part
Clause61.(1) This Part has effect despite anything in any instrument. 11
(2) Nothing done under this Part in relation to a government entity-- 12
(a) places the entity or the State in breach of contract or confidence or 13
otherwise makes the entity or the State guilty of a civil wrong; or 14
(b) makes the entity or the State in breach of any instrument, 15
including an instrument prohibiting, restricting or regulating the 16
assignment or transfer of any right or liability or the disclosure of 17
any information; or 18
(c) is taken to fulfil a condition-- 19
(i) that allows a person to terminate an instrument or obligation 20
or modify the operation or effect of an instrument or 21
obligation; or 22
(ii) that requires any money to be paid before its stated maturity; 23
or 24
(d) releases a surety or other obligee (in whole or part) from an 25
obligation. 26
(3) If, apart from this subsection, the advice or consent of a person 27
would be necessary under an instrument in order to give effect to this Part, 28
the advice is taken to have been obtained or the consent is taken to have 29
been given. 30
45
Government Owned Corporations
may deal with other matters 1
Regulations
A regulation may make provision with respect to any matter 2
Clause62.(1)
for which it is necessary or convenient to make provision to facilitate the 3
transition of a government entity to-- 4
(a) a statutory GOC; or 5
(b) a company GOC (whether or not it is already a statutory GOC or 6
a part of a statutory GOC); or 7
(c) a subsidiary of a statutory GOC or company GOC. 8
(2) Without limiting subsection (1), a regulation may provide that a 9
provision of this Chapter or Chapter 1 applies to a subsidiary of a candidate 10
GOC or a proposed subsidiary of a GOC or candidate GOC, with any 11
necessary modifications and any modifications prescribed by regulation, as 12
if it were-- 13
(a) a candidate GOC; or 14
(b) a candidate GOC of a particular type; or 15
(c) a subsidiary of a candidate GOC; or 16
(d) a subsidiary of a candidate GOC of a particular type. 17
PART 6--CANDIDATE GOCs BECOMING GOCs 18
of entity as GOC 19
Declaration
Clause63. If the Governor in Council is satisfied that-- 20
(a) any corporatisation charter of a candidate GOC has been 21
sufficiently implemented or the candidate GOC is otherwise 22
ready to become a GOC; and 23
(b) the candidate GOC complies with, or on becoming a GOC will 24
comply with, either of the following provisions-- 25
(i) section 65 (Statutory GOC must be body corporate etc.); 26
(ii) section 66 (Company GOC must be public company limited 27
by shares); 28
46
Government Owned Corporations
the Governor in Council may, by regulation, declare that the candidate GOC 1
is a GOC. 2
does not affect legal personality etc. 3
Declaration
Clause64. The declaration of an entity as a GOC does not, of itself, affect-- 4
(a) the legal personality of the entity; or 5
(b) its functions and powers. 6
CHAPTER 3--GOVERNMENT OWNED 7
CORPORATIONS (GOCs) 8
PART 1--BASIC REQUIREMENTS 9
Division 1--Statutory GOCs 10
GOC must be body corporate etc. 11
Statutory
A statutory GOC must be established as a body corporate 12
Clause65.(1)
under an Act and must not be registered under the Corporations Law. 13
(2) A statutory GOC must-- 14
(a) have a board of directors; and 15
(b) have a share capital and issued shares. 16
47
Government Owned Corporations
2--Company GOCs 1
Division
GOC must be public company limited by shares 2
Company
A company GOC must be a public company, and a company 3
Clause66.
limited by shares, within the meaning of the Corporations Law. 4
PART 2--APPLICATION OF CORPORATIONS LAW 5
Division 1--Statutory GOCs 6
of Corporations Law to statutory GOCs 7
Application
The provisions of the Corporations Law prescribed by 8
Clause67.(1)
regulation apply to a statutory GOC as if-- 9
(a) the statutory GOC were a public company and a company limited 10
by shares; and 11
(b) the shares in the GOC held by the shareholding Ministers were 12
shares held in the GOC as a public company and a company 13
limited by shares. 14
(2) The provisions of the Corporations Law (other than those prescribed 15
by regulation) do not apply to a statutory GOC. 16
GOC exempt public authority 17
Statutory
A statutory GOC is an exempt public authority for the purposes 18
Clause68.
of the Corporations Law. 19
48
Government Owned Corporations
2--Company GOCs 1
Division
of Corporations Law to company GOCs 2
Application
The Corporations Law applies to a company GOC except so far 3
Clause69.
as this Act otherwise provides. 4
GOC not exempt public authority 5
Company
A company GOC is not an exempt public authority for the 6
Clause70.
purposes of the Corporations Law. 7
PART 3--SHARES AND SHAREHOLDING 8
MINISTERS 9
Division 1--Statutory GOCs 10
of shareholders 11
Number
A statutory GOC must have only 2 shareholders. 12
Clause71.
must have equal number of shares and equal rights 13
Shareholders
Each shareholder must at all times have an equal number of 14
Clause72.(1)
shares in the statutory GOC. 15
(2) Each shareholder must also at all times be entitled to rights equal to 16
those to which the other shareholder is entitled. 17
must be GOC and portfolio Ministers 18
Shareholders
The GOC Minister and the portfolio Minister of the statutory 19
Clause73.
GOC are taken to be its shareholders. 20
49
Government Owned Corporations
of "shareholding Minister" 1
Meaning
GOC Minister and the portfolio Minister of the statutory 2
Clause74.The
GOC are its "shareholding Ministers". 3
of share capital 4
Variation
Clause75.(1) A regulation may vary the share capital of a statutory GOC. 5
(2) Without limiting subsection (1), a regulation may provide for-- 6
(a) the issue of further shares in a statutory GOC; or 7
(b) the cancellation of issued shares in a statutory GOC; or 8
(c) the consolidation or division of issued shares in a statutory GOC. 9
2--Company GOCs 10
Division
of shareholders 11
Number
A company GOC must have only 5 shareholders. 12
Clause76.
of voting and non-voting shareholders 13
Number
Two of the shareholders must be voting shareholders, and 3 must 14
Clause77.
be non-voting shareholders. 15
shareholders must have equal number of shares and voting 16
Voting
rights 17
Each voting shareholder must at all times have an equal 18
Clause78.(1)
number of voting shares in the company GOC. 19
(2) Each voting shareholder must also at all times be in a position to cast 20
an equal number of votes in relation to the company GOC. 21
must be certain Ministers 22
Shareholders
The GOC Minister and the portfolio Minister of the company 23
Clause79.(1)
GOC are to be its voting shareholders. 24
50
Government Owned Corporations
(2) Each non-voting shareholder must be a Minister (other than the GOC 1
Minister or the portfolio Minister) nominated by the Premier, by Gazette 2
notice, to be a non-voting shareholder of the company GOC. 3
(3) The Premier must make the nomination by nominating the holder of 4
a particular Ministerial office by reference to the title of the office concerned. 5
(4) The Premier may, in an appropriate case, be nominated under 6
subsection (2) to be a non-voting shareholder of the company GOC. 7
of "shareholding Ministers" 8
Meaning
The GOC Minister and the portfolio Minister of the company 9
Clause80.(1)
GOC are its "shareholding Ministers". 10
(2) Non-voting shareholders are not shareholding Ministers of the 11
company GOC. 12
without meetings 13
Resolutions
If the shareholding Ministers of the company GOC sign a 14
Clause81.(1)
document containing a statement that they are in favour of a resolution set 15
out in the document-- 16
(a) a resolution in those terms is taken to have been passed at a 17
general meeting of the GOC held at the time at which, and on the 18
day on which, the document is signed by the last shareholding 19
Minister; and 20
(b) the GOC is taken to have held a general meeting at that time on 21
that day; and 22
(c) the document is taken to be a minute of the meeting; and 23
(d) any document that is attached to the first document, and is signed 24
by the shareholding Ministers, is taken to have been laid before 25
the GOC at the meeting; and 26
(e) if the resolution deals with all matters that are required to be dealt 27
with at an annual general meeting of the GOC--the GOC is taken 28
to have held an annual general meeting. 29
(2) Subsection (1) applies to a resolution that is authorised or required by 30
the Corporations Law, or the GOC's memorandum or articles, to be passed 31
51
Government Owned Corporations
at a general meeting, including a resolution-- 1
(a) appointing an officer or auditor; or 2
(b) approving of, or agreeing to, anything. 3
(3) For the purposes of subsection (1), 2 or more separate documents 4
containing a statement in identical terms, each of which is signed by a 5
shareholding Minister, are taken to constitute a single document. 6
(4) This section has effect for the purposes of the Corporations Law and 7
has that effect despite anything in that Law. 8
(5) Subsection (4) does not limit any other effect that this section may 9
have. 10
(6) This section does not affect any rule of law relating to the 11
effectiveness of the assent of members of a company given to a document 12
or anything else otherwise than at a general meeting of the company. 13
Division 3--GOCs generally 14
hold shares for State etc. 15
Shareholders
Clause82.(1) The State is the owner of all shares in a GOC. 16
(2) A GOC's shareholders hold their shares in the GOC on behalf of the 17
State. 18
issue etc. of shares 19
Transfer,
A GOC's shareholder may transfer shares in the GOC only to 20
Clause83.(1)
another Minister. 21
(2) The Premier may execute a transfer of shares in a GOC or a 22
subsidiary of a GOC for the purpose of giving effect to this Act. 23
(3) If the Premier executes a transfer of shares in a GOC or a subsidiary 24
of a GOC, the GOC or subsidiary must register the transfer and take any 25
other action necessary to give effect to the transfer. 26
(4) Subject to the other provisions of this Part, this Act does not prevent 27
a GOC or a subsidiary of a GOC from issuing further shares to its 28
shareholders. 29
52
Government Owned Corporations
Ministers must act jointly 1
Shareholding
Clause84.(1) If this Act authorises a GOC's shareholding Ministers to do an 2
act, the shareholding Ministers may only do the act jointly. 3
(2) If this Act requires the shareholding Ministers to do an act, the 4
shareholding Ministers must do the act jointly. 5
not directors etc. 6
Ministers
A GOC's shareholding Ministers, and any Ministers who are 7
Clause85.(1)
non-voting shareholders of the GOC, are not to be treated as directors of the 8
GOC or any subsidiary or proposed subsidiary of the GOC. 9
(2) A Minister does not incur civil liability for an act or omission done or 10
omitted to be done honestly and without negligence under, or for the 11
purposes of, this Act in relation to a GOC or a subsidiary or proposed 12
subsidiary of a GOC. 13
(3) A liability that would, apart from subsection (2), attach to the 14
Minister attaches instead to the State. 15
(4) This section has effect despite the Corporations Law. 16
ART 4--MEMORANDUM AND ARTICLES 17
P
Division 1--Statutory GOCs 18
Ministers of statutory GOC may require amendment of 19
Shareholding
subsidiary's memorandum and articles 20
The shareholding Ministers of a statutory GOC may, by 21
Clause86.(1)
written notice, direct the board to amend the memorandum or articles of a 22
subsidiary of the GOC. 23
(2) The board must, as far as practicable, ensure that the direction is 24
complied with. 25
53
Government Owned Corporations
and articles of subsidiary of statutory GOC must not 1
Memorandum
be inconsistent with Act or Corporations Law 2
The memorandum and articles of a subsidiary of a statutory 3
Clause87.(1)
GOC must not be inconsistent with this Act or the Corporations Law. 4
(2) However, if there is any inconsistency between this Act and the 5
Corporations Law regarding the memorandum and articles of a subsidiary 6
of a statutory GOC, this Act prevails to the extent of the inconsistency. 7
(3) If there is any inconsistency between this Act and the memorandum 8
and articles, this Act prevails to the extent of the inconsistency. 9
(4) If there is any inconsistency between the Corporations Law and the 10
memorandum and articles, then, subject to subsection (2), the Corporations 11
Law prevails to the extent of the inconsistency. 12
2--Company GOCs 13
Division
and articles of company GOC may be amended by 14
Memorandum
shareholding Ministers 15
The shareholding Ministers of a company GOC may amend 16
Clause88.(1)
the GOC's memorandum or articles. 17
(2) Subsection (1) does not limit any other power to amend the 18
memorandum or articles. 19
Ministers of company GOC may require amendment of 20
Shareholding
subsidiary's memorandum and articles 21
The shareholding Ministers of a company GOC may, by 22
Clause89.(1)
written notice, direct the board to amend the memorandum or articles of a 23
subsidiary of the GOC. 24
(2) The board must, as far as practicable, ensure that the direction is 25
complied with. 26
54
Government Owned Corporations
and articles of company GOC and its subsidiaries 1
Memorandum
must not be inconsistent with Act or Corporations Law 2
The memorandum and articles of a company GOC and its 3
Clause90.(1)
subsidiaries must not be inconsistent with this Act or the Corporations Law. 4
(2) However, if there is any inconsistency between this Act and the 5
Corporations Law regarding the memorandum and articles of a company 6
GOC or a subsidiary of a company GOC, this Act prevails to the extent of 7
the inconsistency. 8
(3) If there is any inconsistency between this Act and the memorandum 9
and articles, this Act prevails to the extent of the inconsistency. 10
(4) If there is any inconsistency between the Corporations Law and the 11
memorandum and articles, then, subject to subsection (2), the Corporations 12
Law prevails to the extent of the inconsistency. 13
PART 5--BOARD OF DIRECTORS 14
Division 1--Statutory GOCs 15
GOC to have board of directors 16
Statutory
Each statutory GOC is to have a board of directors (the 17
Clause91.
"board"). 18
of board 19
Role
The role of a statutory GOC's board includes the following 20
Clause92.
matters-- 21
(a) responsibility for the GOC's commercial policy and 22
management; 23
(b) ensuring that, as far as possible, the GOC achieves, and acts in 24
accordance with, its statement of corporate intent and carries out 25
its objectives outlined in its statement of corporate intent; 26
55
Government Owned Corporations
(c) accounting to the GOC's shareholders for its performance as 1
required by this Act and other laws applying to the GOC; 2
(d) ensuring that the GOC otherwise performs its functions in a 3
proper, effective and efficient way. 4
by board 5
Delegation
A statutory GOC's board may, by resolution, delegate its powers 6
Clause93.
to-- 7
(a) a director; or 8
(b) a committee of the board; or 9
(c) the GOC's chief executive officer; or 10
(d) an employee of the GOC. 11
provisions relating to board--Schedule 1 12
Additional
Additional provisions relating to the board are set out in 13
Clause94.
Schedule 1. 14
2--Company GOCs 15
Division
of board 16
Role
The role of a company GOC's board includes the following 17
Clause95.
matters-- 18
(a) responsibility for the GOC's commercial policy and 19
management; 20
(b) ensuring that, as far as possible, the GOC achieves, and acts in 21
accordance with, its statement of corporate intent and carries out 22
the objectives outlined in its statement of corporate intent; 23
(c) accounting to the GOC's shareholders for its performance as 24
required by this Act and other laws applying to the GOC; 25
(d) ensuring that the GOC otherwise performs its functions in a 26
proper, effective and efficient way. 27
56
Government Owned Corporations
of board 1
Composition
A company GOC's board is to consist of the number of 2
Clause96.(1)
directors that are appointed by the Governor in Council. 3
(2) In appointing a person as a director, the Governor in Council must 4
have regard to the person's ability to make a contribution to the GOC's 5
commercial performance and the implementation of its statement of 6
corporate intent. 7
(3) Subsection (1) has effect despite-- 8
(a) the company GOC's memorandum and articles; and 9
(b) the Corporations Law. 10
ART 6--CHIEF EXECUTIVE OFFICER 11
P
Division 1--Statutory GOCs 12
GOC to have chief executive officer 13
Statutory
Clause97. Each statutory GOC is to have a chief executive officer. 14
of chief executive officer 15
Duties
A statutory GOC's chief executive officer is, under its board, to 16
Clause98.
manage the GOC. 17
done by chief executive officer 18
Things
Anything done in the name of, or for, a statutory GOC by its 19
Clause99.
chief executive officer is taken to have been done by the GOC. 20
by chief executive officer 21
Delegation
The chief executive officer of a statutory GOC may delegate 22
Clause100.(1)
the chief executive officer's powers (including a power delegated to the 23
57
Government Owned Corporations
chief executive) to an employee of the GOC. 1
(2) Subsection (1) has effect subject to any directions of the GOC's 2
board. 3
provisions relating to chief executive officer--Schedule 2 4
Additional
Additional provisions relating to the chief executive officer are 5
Clause101.
set out in Schedule 2. 6
2--Company GOCs 7
Division
of chief executive officer 8
Appointment
A company GOC's chief executive officer is to be appointed 9
Clause102.(1)
by the Governor in Council on the recommendation of the GOC's board. 10
(2) This section has effect despite the Corporations Law. 11
PART 7--CORPORATE PLAN 12
1--General 13
Division
must have corporate plan 14
GOC
Clause103. Each GOC must have a corporate plan. 15
plan to apply to subsidiaries 16
Corporate
If a GOC has subsidiaries, the GOC's corporate plan must 17
Clause104.
apply to the GOC and its subsidiaries. 18
in relation to corporate plans 19
Guidelines
The GOC Minister may issue guidelines about the form and 20
Clause105.(1)
58
Government Owned Corporations
content of corporate plans. 1
(2) Every GOC must comply with the guidelines. 2
(3) Guidelines under this section are subordinate legislation. 3
2--Preparation, agreement on and modification of corporate 4
Division
plan 5
corporate plan 6
Draft
The board of a GOC must prepare, and submit to the 7
Clause106.(1)
shareholding Ministers for their agreement, a draft corporate plan-- 8
(a) within 1 month of becoming a GOC; and 9
(b) not later than 2 months before the start of each subsequent 10
financial year (a "subsequent financial year"). 11
(2) The board and the shareholding Ministers must endeavour to reach 12
agreement on the draft plan as soon as possible and, in the case of a draft 13
corporate plan for a subsequent financial year, in any event not later than 14
1 month before the start of the financial year. 15
procedures in relation to draft corporate plan 16
Special
The shareholding Ministers may return the draft corporate 17
Clause107.(1)
plan to the board and request it to-- 18
(a) consider or further consider any matter and deal with the matter in 19
the draft plan; and 20
(b) revise the draft plan in the light of its consideration or further 21
consideration. 22
(2) The board must comply with the request as a matter of urgency. 23
(3) If a draft corporate plan has not been agreed to by the shareholding 24
Ministers within 2 months from the day on which the GOC becomes a 25
GOC, the shareholding Ministers may, by written notice, direct the board-- 26
(a) to take specified steps in relation to the draft plan; or 27
(b) to make specified modifications to the draft plan. 28
59
Government Owned Corporations
(4) If, in the case of a subsequent financial year, a draft corporate plan 1
has not been agreed to by the shareholding Ministers by 1 month before the 2
start of the financial year, the shareholding Ministers may, by written notice, 3
direct the board-- 4
(a) to take specified steps in relation to the draft plan; or 5
(b) to make specified modifications to the draft plan. 6
(5) The board must immediately comply with a direction under 7
subsection (3) or (4). 8
(6) The shareholding Ministers must cause a copy of a direction to be 9
published in the Gazette within 21 days after it is given. 10
plan on agreement 11
Corporate
When a draft corporate plan of a GOC is agreed to by the 12
Clause108.
shareholding Ministers, it becomes the GOC's corporate plan for the 13
relevant financial year. 14
plan pending agreement 15
Corporate
If a draft corporate plan has not been agreed to by the 16
Clause109.(1)
shareholding Ministers within 1 month from the day on which the GOC 17
becomes a GOC, the draft corporate plan submitted, or last submitted, by 18
the board to the shareholding Ministers before that time (with any 19
modifications made by the board, whether before or after that time, at the 20
direction of the shareholding Ministers) is taken to be the GOC's corporate 21
plan until a draft corporate plan becomes the GOC's corporate plan under 22
section 108 (Corporate plan on agreement). 23
(2) If, in the case of a subsequent financial year, the shareholding 24
Ministers of a GOC have not agreed to a draft corporate plan before the start 25
of the financial year, the draft corporate plan submitted, or last submitted, 26
by the board to the shareholding Ministers before the start of the financial 27
year (with any modifications made by the board, whether before or after 28
that time, at the direction of the shareholding Ministers) is taken to be the 29
GOC's corporate plan until a draft corporate plan becomes the GOC's 30
corporate plan under section 108. 31
60
Government Owned Corporations
of corporate plan 1
Modifications
A GOC's corporate plan may be modified by its board with 2
Clause110.(1)
the agreement of the shareholding Ministers. 3
(2) The shareholding Ministers may, by written notice, direct the board to 4
modify the corporate plan. 5
(3) The shareholding Ministers must cause a copy of the direction to be 6
published in the Gazette within 21 days after it is given. 7
ART 8--STATEMENT OF CORPORATE INTENT 8
P
1--General 9
Division
must have statement of corporate intent 10
GOC
Each GOC must have a statement of corporate intent for each 11
Clause111.
financial year. 12
of corporate intent to apply to subsidiaries 13
Statement
If a GOC has subsidiaries, the GOC's statement of corporate 14
Clause112.(1)
intent must apply to the GOC and its subsidiaries. 15
(2) Division 2 applies to the GOC as if a reference to the GOC included a 16
reference to its subsidiaries. 17
of corporate intent must be consistent with corporate plan 18
Statement
A GOC's statement of corporate intent must be consistent with 19
Clause113.
its corporate plan. 20
61
Government Owned Corporations
2--Matters to be included in statement of corporate intent 1
Division
to be included in statement of corporate intent 2
Matters
A GOC's statement of corporate intent must specify the 3
Clause114.(1)
GOC's financial and non-financial performance targets for its activities for 4
the relevant financial year. 5
(2) The statement of corporate intent must also include the matters 6
required by the following sections-- 7
(a) section 115 (Additional matters to be included in statement of 8
corporate intent); 9
(b) section 122 (Community service obligations to be specified in 10
statement of corporate intent); 11
(c) section 171 (Employment and industrial relations plan). 12
matters to be included in statement of corporate intent 13
Additional
A GOC's statement of corporate intent must include the 14
Clause115.(1)
following additional matters-- 15
(a) an outline of the GOC's objectives; 16
(b) an outline of the nature and scope of the activities proposed to be 17
undertaken by the GOC during the relevant financial year; 18
(c) an outline of the GOC's main undertakings during the relevant 19
financial year; 20
(d) the GOC's capital structure and dividend policies; 21
(e) an outline of the major infrastructure investments proposed to be 22
undertaken by the GOC during the relevant financial year; 23
(f) an outline of the borrowings made, and proposed to be made, by 24
the GOC; 25
(g) an outline of the policies adopted by the GOC to minimise and 26
manage any risk of investments and borrowings that may 27
adversely affect its financial stability; 28
(h) an outline of the GOC's policies and procedures relating to the 29
62
Government Owned Corporations
acquisition and disposal of major assets; 1
(i) the GOC's accounting policies that apply to the preparation of its 2
accounts; 3
(j) the type of information to be given to the shareholding Ministers, 4
including information to be given in quarterly and annual reports. 5
(2) The GOC's shareholding Ministers may exempt the GOC from 6
including any matter, or any aspect of a matter, mentioned in subsection (1) 7
in the statement of corporate intent. 8
(3) Subsection (1) does not limit the matters that may be included in a 9
statement of corporate intent. 10
Division 3--Preparation, agreement on and modification of statement of 11
corporate intent 12
statement of corporate intent 13
Draft
The board of a GOC must prepare, and submit to the 14
Clause116.(1)
shareholding Ministers for their agreement, a draft statement of corporate 15
intent-- 16
(a) within 1 month of becoming a GOC; and 17
(b) not later than 2 months before the start of each subsequent 18
financial year (a "subsequent financial year"). 19
(2) The board and the shareholding Ministers must endeavour to reach 20
agreement on the draft statement as soon as possible and, in the case of a 21
draft statement of corporate intent for a subsequent financial year, in any 22
event not later than the start of the financial year. 23
procedures in relation to draft statement of corporate intent 24
Special
The shareholding Ministers may return the draft statement of 25
Clause117.(1)
corporate intent to the board and request it to-- 26
(a) consider or further consider any matter and deal with the matter in 27
the draft statement; and 28
(b) revise the draft statement in the light of its consideration or further 29
63
Government Owned Corporations
consideration. 1
(2) The board must comply with the request as a matter of urgency. 2
(3) If a draft statement of corporate intent has not been agreed to by the 3
shareholding Ministers within 2 months from the day on which the GOC 4
becomes a GOC, the shareholding Ministers may, by written notice, direct 5
the board-- 6
(a) to take specified steps in relation to the draft statement; or 7
(b) to make specified modifications to the draft statement. 8
(4) If, in the case of a subsequent financial year, a draft statement of 9
corporate intent of the GOC has not been agreed to by the shareholding 10
Ministers before the start of the financial year, the shareholding Ministers 11
may, by written notice, direct the board-- 12
(a) to take specified steps in relation to the draft statement; or 13
(b) to make specified modifications to the draft statement. 14
(5) The board must immediately comply with a direction under 15
subsection (3) or (4). 16
(6) The shareholding Ministers must cause a copy of the direction to be 17
published in the Gazette within 21 days after it is given. 18
of corporate intent on agreement 19
Statement
Clause118. When a draft statement of corporate intent of a GOC is agreed to 20
by the shareholding Ministers, it becomes the GOC's statement of 21
corporate intent for the relevant financial year. 22
of corporate intent pending agreement 23
Statement
If a draft statement of corporate intent has not been agreed to 24
Clause119.(1)
by the shareholding Ministers within 2 months from the day on which the 25
GOC becomes a GOC, the draft statement of corporate intent submitted, or 26
last submitted, by the board to the shareholding Ministers before that time 27
(with any modifications made by the board, whether before or after that 28
time, at the direction of the shareholding Ministers) is taken to be the 29
GOC's statement of corporate intent until a draft statement of corporate 30
intent becomes the GOC's statement of corporate intent under section 118 31
64
Government Owned Corporations
(Statement of corporate intent on agreement). 1
(2) If, in the case of a subsequent financial year, the shareholding 2
Ministers of a GOC have not agreed to a draft statement of corporate intent 3
before the start of the financial year, the draft statement of corporate intent 4
submitted, or last submitted, by the board to the shareholding Ministers 5
before the start of the financial year (with any modifications made by the 6
board, whether before or after that time, at the direction of the shareholding 7
Ministers) is taken to be the GOC's statement of corporate intent until a 8
draft statement of corporate intent becomes the GOC's statement of 9
corporate intent under section 118. 10
of statement of corporate intent 11
Modifications
A GOC's statement of corporate intent may be modified by 12
Clause120.(1)
its board with the agreement of the shareholding Ministers. 13
(2) The shareholding Ministers may, by written notice, direct the board to 14
modify the statement of corporate intent. 15
(3) Before giving the direction, the shareholding Ministers must consult 16
with the board and take its views into account. 17
(4) The shareholding Ministers must cause a copy of the direction to be 18
published in the Gazette within 21 days after it is given. 19
ART 9--COMMUNITY SERVICE OBLIGATIONS 20
P
of "community service obligations" 21
Meaning
The "community service obligations" of a GOC are 22
Clause121.(1)
obligations to perform activities that the GOC's board establishes to the 23
satisfaction of the shareholding Ministers-- 24
(a) are not in the commercial interests of the GOC to perform; and 25
(b) arise because of a direction, notification or duty to which this 26
section applies; and 27
(c) do not arise because of the application of the following key 28
65
Government Owned Corporations
principles of corporatisation (and their elements)-- 1
(i) Principle 3--Strict accountability for performance; 2
(ii) Principle 4--Competitive neutrality. 3
(2) This section applies to the following directions, notifications and 4
duties-- 5
(a) a direction given to the GOC's board under section 107 (Special 6
procedures in relation to draft corporate plan); 7
(b) a direction given to the GOC's board under section 110 8
(Modifications of corporate plan); 9
(c) a direction given to the GOC's board under section 117 (Special 10
procedures in relation to draft statement of corporate intent); 11
(d) a direction given to the GOC's board under section 120 12
(Modifications of statement of corporate intent); 13
(e) a notification given to the GOC's board under section 123 14
(Reserve power of shareholding Ministers to notify board of 15
public sector policies); 16
(f) a direction given to the GOC's board under section 124 (Reserve 17
power of shareholding Ministers to give directions in public 18
interest); 19
(g) a direction given to the GOC's board under section 161 (Reserve 20
power of shareholding Ministers to direct that asset not be 21
disposed of); 22
(h) a statutory duty to perform activities (including any economic 23
development activities or activities of a regulatory or policy 24
formulation nature) that arise under an Act applying specifically 25
to the GOC or GOCs generally. 26
service obligations to be specified in statement of 27
Community
corporate intent 28
The community service obligations that a GOC is to perform 29
Clause122.(1)
are to be specified in its statement of corporate intent. 30
(2) The costings of, funding for, or other arrangements to make 31
adjustments relating to, the GOC's community service obligations are also 32
66
Government Owned Corporations
to be specified in its statement of corporate intent. 1
(3) The statement of corporate intent is conclusive, as between the 2
Government and the GOC, of-- 3
(a) the nature and extent of the GOC's community service 4
obligations; and 5
(b) the ways in which, and the extent to which, the GOC is to be 6
compensated by the Government for performing its community 7
service obligations. 8
PART 10--GENERAL RESERVE POWERS OF 9
SHAREHOLDING MINISTERS 10
power of shareholding Ministers to notify board of public 11
Reserve
sector policies 12
The shareholding Ministers of a GOC may notify the GOC's 13
Clause123.(1)
board, in writing, of a public sector policy that is to apply to the GOC and 14
its subsidiaries if the shareholding Ministers are satisfied that it is necessary 15
to give the notification in the public interest. 16
(2) The board must ensure that the policy is carried out in relation to the 17
GOC and must, as far as practicable, ensure that the policy is carried out in 18
relation to its subsidiaries. 19
(3) Before giving a notification under this section, the shareholding 20
Ministers must-- 21
(a) consult with the board; and 22
(b) request the board to advise them whether, in its opinion, carrying 23
out the policy would not be in the commercial interests of the 24
GOC or any of its subsidiaries. 25
(4) The shareholding Ministers must cause a copy of the notification to 26
be published in the Gazette within 21 days after it is given. 27
67
Government Owned Corporations
power of shareholding Ministers to give directions in public 1
Reserve
interest 2
The shareholding Ministers of a GOC may give the GOC's 3
Clause124.(1)
board a written direction in relation to the GOC and its subsidiaries if the 4
shareholding Ministers are satisfied that, because of exceptional 5
circumstances, it is necessary to give the direction in the public interest. 6
(2) The board must ensure that the direction is complied with in relation 7
to the GOC and must, as far as practicable, ensure that it is complied with in 8
relation to its subsidiaries. 9
(3) Before giving the direction, the shareholding Ministers must-- 10
(a) consult with the board; and 11
(b) request the board to advise them whether, in its opinion, 12
complying with the direction would not be in the commercial 13
interests of the GOC or any of its subsidiaries. 14
(4) The shareholding Ministers must cause a copy of the direction to be 15
published in the Gazette within 21 days after it is given. 16
of suspected insolvency because of direction or notification 17
Notice
If-- 18
Clause125.(1)
(a) a GOC's board is given a direction or notification by the 19
shareholding Ministers; and 20
(b) the board suspects that the GOC, or a subsidiary of the GOC, will 21
or may become insolvent; and 22
(c) in the board's opinion, the cause or a substantial cause of the 23
suspected insolvency would be compliance with the direction or 24
notification; 25
the board must immediately give written notice to the shareholding 26
Ministers and the Auditor-General of-- 27
(d) the suspicion; and 28
(e) its reasons for the opinion. 29
(2) The notice must state that it is given under this section. 30
(3) The giving of the notice operates to suspend the direction or 31
68
Government Owned Corporations
notification until-- 1
(a) the shareholding Ministers advise the board, in writing, that they 2
are not satisfied-- 3
(i) that the board's suspicion mentioned in subsection (1)(b) is 4
well-founded; or 5
(ii) that the board's opinion mentioned in subsection (1)(c) is 6
justified; or 7
(b) the direction or notification is revoked. 8
(4) If the shareholding Ministers are satisfied that the board's suspicion 9
is well-founded, the shareholding Ministers must immediately-- 10
(a) if they are also satisfied that the board's opinion is 11
justified--revoke the direction or notification; and 12
(b) in any case--give the board the written directions that the 13
shareholding Ministers consider necessary or desirable, including 14
any directions necessary or desirable to ensure-- 15
(i) that the GOC or subsidiary does not incur further debts; or 16
(ii) that the GOC or subsidiary will be able to pay all its debts as 17
and when they become due. 18
(5) Without limiting subsection (4), a direction under this section may 19
require the GOC or any of its subsidiaries to cease or limit particular 20
activities. 21
(6) The board must ensure that a direction under this section is complied 22
with in relation to the GOC and must, as far as practicable, ensure that it is 23
complied with in relation to its subsidiaries. 24
(7) The shareholding Ministers must cause a copy of the direction to be 25
published in the Gazette within 21 days after it is given. 26
(8) This section is in addition to, and does not limit, another provision of 27
this Act or another law. 28
and board not otherwise subject to government direction 29
GOC
Clause126. Except as otherwise provided by this or another Act, a GOC and 30
its board are not subject to direction by or on behalf of the Government. 31
69
Government Owned Corporations
PART 11--REPORTS AND OTHER 1
ACCOUNTABILITY MATTERS 2
Division 1--Statutory GOCs 3
of Financial Administration and Audit Act 4
Application
The Financial Administration and Audit Act 1977 ("the 5
Clause127.(1)
Act") applies to a statutory GOC with any modifications that are prescribed 6
by regulation. 7
(2) The Act applies to a statutory GOC as if-- 8
(a) it were a statutory body within the meaning of the Act; and 9
(b) a reference in the Act to the appropriate Minister were a reference 10
to the shareholding Ministers. 11
2--Company GOCs 12
Division
of Financial Administration and Audit Act 13
Application
The provisions of the Financial Administration and Audit Act 14
Clause128.(1)
1977 ("the Act"), relating to audit and the furnishing to the appropriate 15
Minister and tabling of annual reports, that are prescribed by regulation 16
apply to a company GOC with any modifications that are prescribed by 17
regulation. 18
(2) The Act applies to a company GOC as if-- 19
(a) it were a statutory body within the meaning of the Act; and 20
(b) a reference in the Act to the appropriate Minister were a reference 21
to the shareholding Ministers. 22
(3) The provisions of the Act (other than those prescribed by regulation) 23
do not apply to a company GOC. 24
70
Government Owned Corporations
of Public Accounts Committee Act 1
Application
To remove any doubt, it is declared that the Public Accounts 2
Clause129.
Committee Act 1988 applies to the annual reports and financial statements of 3
a company GOC in the same way as it applies to the annual reports and 4
financial statements of a statutory GOC. 5
Division 3--GOCs generally 6
reports 7
Quarterly
A GOC's board must give to the shareholding Ministers a 8
Clause130.(1)
report on the operations of the GOC and its subsidiaries for each of the first 9
3 quarters of a financial year. 10
(2) A quarterly report must be given to the shareholding Ministers-- 11
(a) within 1 month after the end of the quarter; or 12
(b) if another period after the end of the quarter is agreed between the 13
board and the shareholding Ministers--within the agreed period. 14
(3) A quarterly report must include the information required to be given 15
in the report by the GOC's statement of corporate intent. 16
to be included in annual report 17
Matters
Each annual report of a GOC must-- 18
Clause131.(1)
(a) contain the information that is required to be included in the report 19
by the shareholding Ministers to enable an informed assessment 20
to be made of the operations of the GOC and its subsidiaries, 21
including a comparison of the performance of the GOC and its 22
subsidiaries with the GOC's statement of corporate intent; and 23
(b) state the GOC's dividend policy for the financial year to which 24
the report relates; and 25
(c) include the statement of corporate intent for the relevant financial 26
year; and 27
(d) include particulars of any modifications made to the statement of 28
corporate intent during the relevant financial year; and 29
71
Government Owned Corporations
(e) include particulars of any directions and notifications given to the 1
GOC's board by the shareholding Ministers that relate to the 2
relevant financial year; and 3
(f) include particulars of the impact on the financial position, profits 4
and losses and prospects of the GOC and its subsidiaries of any 5
modifications to the statement of corporate intent, and any 6
directions and notifications given to the board by the shareholding 7
Ministers, that relate to the relevant financial year. 8
(2) Each annual report of a statutory GOC must also state whether or 9
not, in the directors' opinion, there are, when the statement is made, 10
reasonable grounds to believe that the GOC will be able to pay its debts as 11
and when they fall due. 12
(3) Each annual report of a company GOC must also include the matters 13
that are required to be included in, or to accompany, the GOC's annual 14
return under the Corporations Law. 15
(4) This section does not limit the matters that are required to be included 16
in, or to accompany, a GOC's annual report by the Corporations Law or 17
another Act. 18
of commercially sensitive matters from annual report etc. 19
Deletion
If a GOC's board requests the shareholding Ministers to 20
Clause132.(1)
delete from the copies of an annual report of the GOC (and accompanying 21
documents) that are to be made public a matter that is of a commercially 22
sensitive nature, the shareholding Ministers may delete the matter from the 23
copies of the annual report (and accompanying documents) that are laid 24
before the Legislative Assembly or otherwise made public. 25
(2) An annual report of a GOC may include a summary of a matter 26
required to be included in the annual report, rather than a full statement of 27
the matter, if-- 28
(a) the summary indicates that it is a summary only; and 29
(b) a full statement of the matter is laid before the Legislative 30
Assembly at the same time as a copy of the annual report is laid 31
before the Legislative Assembly. 32
(3) Subsections (1) and (2) have effect despite section 131 (Matters to be 33
72
Government Owned Corporations
included in annual report) or another Act. 1
(4) Subsection (1) has effect despite subsection (2). 2
to keep shareholding Ministers informed 3
Board
A GOC's board must-- 4
Clause133.(1)
(a) keep the shareholding Ministers reasonably informed of the 5
operations, financial performance and financial position of the 6
GOC and its subsidiaries, including the assets and liabilities, 7
profits and losses and prospects of the GOC and its subsidiaries; 8
and 9
(b) give to the shareholding Ministers reports and information that 10
they require to enable them to make informed assessments of 11
matters mentioned in paragraph (a); and 12
(c) if matters arise that in the board's opinion may prevent, or 13
significantly affect, achievement of the GOC's objectives outlined 14
in its statement of corporate intent or targets under its corporate 15
plan--immediately inform the shareholding Ministers of the 16
matters and its opinion in relation to them. 17
(2) Subsection (1) does not limit the matters of which the board is 18
required to keep the shareholding Ministers informed, or limit the reports or 19
information that the board is required, or may be required, to give to the 20
shareholding Ministers, by the Corporations Law or another Act. 21
PART 12--DUTIES AND LIABILITIES OF 22
DIRECTORS AND OTHER OFFICERS 23
Division 1--Statutory GOCs 24
of interests by directors 25
Disclosure
If a director of a statutory GOC has a direct or indirect 26
Clause134.(1)
interest in a matter being considered, or about to be considered, by the 27
73
Government Owned Corporations
board, the director must disclose the nature of the interest to a meeting of 1
the board as soon as practicable after the relevant facts come to the 2
director's knowledge. 3
Maximum penalty--100 penalty units. 4
(2) The disclosure must be recorded in the board's minutes. 5
by interested director 6
Voting
A director of a statutory GOC who has a material personal 7
Clause135.(1)
interest in a matter that is being considered by the board must not-- 8
(a) vote on the matter; or 9
(b) vote on a proposed resolution (a "related resolution") under 10
subsection (2) in relation to the matter (whether in relation to the 11
director or another director); or 12
(c) be present while the matter, or a related resolution, is being 13
considered by the board; or 14
(c) otherwise take part in any decision of the board in relation to the 15
matter or a related resolution. 16
Maximum penalty--100 penalty units. 17
(2) Subsection (1) does not apply to the matter if the board has at any 18
time passed a resolution that-- 19
(a) specifies the director, the interest and the matter; and 20
(b) states that the directors voting for the resolution are satisfied that 21
the interest should not disqualify the director from considering or 22
voting on the matter. 23
(3) A quorum is present during a consideration of a matter by the board 24
only if at least 2 directors are present who are entitled to vote on any motion 25
that may be moved in relation to the matter. 26
(4) The shareholding Ministers may, by each signing consent to a 27
proposed resolution, deal with a matter if the board cannot deal with it 28
because of subsection (3). 29
74
Government Owned Corporations
and liability of certain officers of statutory GOC 1
Duty
Clause136.(1) In this section-- 2
"officer" of a statutory GOC means-- 3
(a) a director of the GOC; or 4
(b) the GOC's chief executive officer; or 5
(c) another person who is concerned, or takes part, in the GOC's 6
management. 7
(2) An officer of a statutory GOC must act honestly in the exercise of 8
powers, and discharge of functions, as an officer of the GOC. 9
Maximum penalty-- 10
(a) if the contravention is committed with intent to deceive or defraud 11
the GOC, creditors of the GOC or creditors of another person or 12
for another fraudulent purpose--500 penalty units or 13
imprisonment for 5 years; or 14
(b) in any other case--100 penalty units. 15
(3) In the exercise of powers and the discharge of functions, an officer of 16
a statutory GOC must exercise the degree of care and diligence that a 17
reasonable person in a like position in a statutory GOC would exercise in 18
the statutory GOC's circumstances. 19
Maximum penalty--100 penalty units. 20
(4) An officer of a statutory GOC, or a person who has been an officer 21
of a statutory GOC, must not make improper use of information acquired 22
because of his or her position as an officer of the GOC-- 23
(a) to gain, directly or indirectly, an advantage for himself or herself 24
or for another person; or 25
(b) to cause detriment to the GOC. 26
Maximum penalty--500 penalty units or imprisonment for 5 years. 27
(5) An officer of a statutory GOC must not make improper use of his or 28
her position as an officer of the GOC-- 29
(a) to gain, directly or indirectly, an advantage for himself or herself 30
or another person; or 31
75
Government Owned Corporations
(b) to cause detriment to the GOC. 1
Maximum penalty--500 penalty units or imprisonment for 5 years. 2
(6) If a person contravenes this section in relation to a statutory GOC, the 3
statutory GOC may recover from the person as a debt due to the statutory 4
GOC-- 5
(a) if the person or another person made a profit because of the 6
contravention--an amount equal to the profit; and 7
(b) if the statutory GOC suffered loss or damage because of the 8
contravention--an amount equal to the loss or damage. 9
(7) An amount may be recovered from the person under subsection (6) 10
whether or not the person has been convicted of an offence in relation to the 11
contravention. 12
(8) Subsection (6) is in addition to, and does not limit, the Crimes 13
(Confiscation of Profits) Act 1989. 14
(9) In determining for the purposes of subsection (3) the degree of care 15
and diligence that a reasonable person in a like position in a statutory GOC 16
would exercise in the circumstances of the statutory GOC concerned, regard 17
must be had to-- 18
(a) the fact that the person is an officer of a statutory GOC; and 19
(b) the application of this Act to the GOC; and 20
(c) relevant matters required or permitted to be done under this Act in 21
relation to the GOC; 22
including, for example-- 23
(d) any relevant community service obligations of the GOC; and 24
(e) any relevant directions, notifications or approvals given to the 25
GOC by the GOC's shareholding Ministers. 26
(10) Subsection (9) does not limit the matters to which regard may be 27
had for the purposes of subsection (3). 28
(11) This section-- 29
(a) is in addition to, and does not limit, any rule of law relating to the 30
duty or liability of a person because of the person's office in 31
relation to a corporation; and 32
76
Government Owned Corporations
(b) does not prevent civil proceedings being instituted for a breach of 1
the duty or the liability. 2
on loans to directors 3
Prohibition
Clause137.(1) A statutory GOC must not, whether directly or indirectly-- 4
(a) make a loan to a director, a spouse of a director or a relative of a 5
director or spouse; or 6
(b) give a guarantee or provide security in connection with a loan 7
made to a director, a spouse of a director or a relative of a director 8
or spouse. 9
(2) Subsection (1) does not apply to the entering into by the GOC of an 10
instrument with a person mentioned in subsection (1) if the instrument is 11
entered into on the same terms as similar instruments (if any) are entered 12
into by the GOC with members of the public. 13
(3) A director of a statutory GOC who is knowingly concerned in a 14
contravention of subsection (1) by the GOC (whether or not in relation to 15
the director) commits an offence. 16
Maximum penalty--100 penalty units. 17
(4) In this section-- 18
"relative" means-- 19
(a) a parent or remoter lineal ancestor; or 20
(b) son, daughter or remoter issue; or 21
(c) a brother or sister. 22
GOC not to indemnify officers 23
Statutory
A statutory GOC must not-- 24
Clause138.(1)
(a) indemnify a person who is or has been an officer of the GOC 25
against a liability incurred as an officer; or 26
(b) exempt a person who is or has been an officer of the GOC from a 27
liability incurred as an officer. 28
(2) An instrument is void so far as it provides for the statutory GOC to 29
77
Government Owned Corporations
do something that subsection (1) prohibits. 1
(3) Subsection (1) does not prevent the statutory GOC from 2
indemnifying a person against a civil liability (other than a liability to the 3
GOC or a subsidiary of the GOC) unless the liability arises out of conduct 4
involving a lack of good faith. 5
(4) Subsection (1) does not prevent the statutory GOC from 6
indemnifying a person against a liability for costs and expenses incurred by 7
the person-- 8
(a) in defending a proceeding, whether civil or criminal, in which 9
judgment is given in favour of the person or in which the person 10
is acquitted; or 11
(b) in connection with an application in relation to a proceeding in 12
which relief is granted to the person by a court. 13
(5) The statutory GOC may give an indemnity mentioned in 14
subsection (3) or (4) only with the prior approval of the shareholding 15
Ministers. 16
(6) In this section-- 17
"indemnify" includes indemnify indirectly through 1 or more interposed 18
entities; 19
"officer" of a statutory GOC means-- 20
(a) a director of the GOC; or 21
(b) the GOC's chief executive officer; or 22
(c) another person who is concerned, or takes part, in the GOC's 23
management. 24
GOC not to pay premiums for certain liabilities of officers 25
Statutory
A statutory GOC must not pay, or agree to pay, a premium 26
Clause139.(1)
in relation to a contract insuring a person who is or has been an officer of 27
the GOC against a liability-- 28
(a) incurred by the person as an officer; and 29
(b) arising out of conduct involving-- 30
(i) a wilful breach of duty in relation to the GOC; or 31
78
Government Owned Corporations
(ii) without limiting subparagraph (i), a contravention of 1
section 136(4) or (5). 2
(2) Subsection (1) does not apply to a liability for costs and expenses 3
incurred by a person in defending proceedings, whether civil or criminal, 4
and whatever their outcome. 5
(3) An instrument is void so far as it insures a person against a liability in 6
contravention of subsection (1). 7
(4) In this section-- 8
"officer" of a statutory GOC means-- 9
(a) a director of the GOC; or 10
(b) the GOC's chief executive officer; or 11
(c) another person who is concerned, or takes part, in the GOC's 12
management; 13
"pay" includes pay indirectly through 1 or more interposed entities. 14
duty to prevent insolvent trading 15
Director's
If-- 16
Clause140.(1)
(a) immediately before a statutory GOC incurs a debt-- 17
(i) there are reasonable grounds to suspect that the GOC will 18
not be able to pay all its debts as and when they become due; 19
or 20
(ii) there are reasonable grounds to suspect that, if the GOC 21
incurs the debt, it will not be able to pay all its debts as and 22
when they become due; and 23
(b) the GOC is, or later becomes, unable to pay all its debts as and 24
when they become due; 25
a person who is a director of the GOC, or takes part in the GOC's 26
management, at the time when the debt is incurred commits an offence. 27
Maximum penalty--100 penalty units or imprisonment for 1 year. 28
(2) In a proceeding against a person for an offence against this section, it 29
is a defence if it is proved-- 30
79
Government Owned Corporations
(a) that the debt was incurred without the person's express or implied 1
authority or consent; or 2
(b) that, at the time when the debt was incurred, the person did not 3
have reasonable cause to suspect-- 4
(i) that the GOC would not be able to pay all its debts as and 5
when they became due; or 6
(ii) that, if the GOC incurred that debt, it would not be able to 7
pay all its debts as and when they became due; or 8
(c) that the person took all reasonable steps to prevent the GOC from 9
incurring the debt; or 10
(d) in the case of a director--that the person did not take part at the 11
time in the GOC's management because of illness or for some 12
other good cause. 13
may order compensation 14
Court
If a person is found guilty of an offence against section 140 15
Clause141.(1)
(Director's duty to prevent insolvent trading) in relation to the incurring of a 16
debt by a statutory GOC, the Supreme Court or a District Court may 17
declare that the person is to be personally responsible without any limitation 18
of liability for the payment to the GOC of the amount required to satisfy the 19
part of the GOC's debts that the court considers proper. 20
(2) This section does not affect any rights of a person to indemnity, 21
subrogation or contribution. 22
(3) This section-- 23
(a) is in addition to, and does not limit, any rule of law about the duty 24
or liability of a person because of the person's office in relation to 25
a corporation; and 26
(b) does not prevent proceedings being instituted for a breach of the 27
duty or the liability. 28
of persons concerned with statutory GOCs 29
Examination
Clause142.(1) If it appears to the Attorney-General that-- 30
80
Government Owned Corporations
(a) a person who has been concerned, or taken part, in a statutory 1
GOC's management, administration or affairs has been, or may 2
have been, guilty of fraud, negligence, default, breach of trust or 3
breach of duty or other misconduct in relation to the GOC; or 4
(b) a person may be capable of giving information in relation to a 5
statutory GOC's management, administration or affairs; 6
the Attorney-General may apply to the Supreme Court or a District Court 7
for an order under this section in relation to the person. 8
(2) The court may order that the person attend before the court at a time 9
and place fixed by the court to be examined on oath on any matters relating 10
to the GOC's management, administration or affairs. 11
(3) The examination of the person is to be held in public except so far as 12
the court considers that, because of special circumstances, it is desirable to 13
hold the examination in private. 14
(4) The court may give directions about-- 15
(a) the matters to be inquired into at the examination; and 16
(b) the procedures to be followed at the examination (including, if the 17
examination is to be held in private, the persons who may be 18
present). 19
(5) The person must not fail, without reasonable excuse-- 20
(a) to attend as required by the order; or 21
(b) to continue to attend as required by the court until the completion 22
of the examination. 23
Maximum penalty--200 penalty units or imprisonment for 2 years. 24
(6) The person must not fail to take an oath or make an affirmation at the 25
examination. 26
Maximum penalty--200 penalty units or imprisonment for 2 years. 27
(7) The person must not fail to answer a question that the person is 28
directed by the court to answer. 29
Maximum penalty--200 penalty units or imprisonment for 2 years. 30
(8) The person may be directed by the court (whether in the order or by 31
subsequent direction) to produce any document in the person's possession, 32
81
Government Owned Corporations
or under the person's control, relevant to the matters on which the person is 1
to be, or is being, examined. 2
(9) The person must not, without reasonable excuse, contravene a 3
direction under subsection (8). 4
Maximum penalty--200 penalty units or imprisonment for 2 years. 5
(10) If the court directs the person to produce a document and the person 6
has a lien on the document, the production of the document does not 7
prejudice the lien. 8
(11) The person must not knowingly make a statement at the 9
examination that is false or misleading in a material particular. 10
Maximum penalty--500 penalty units or imprisonment for 5 years. 11
(12) The person is not excused from answering a question put to the 12
person at the examination on the ground that the answer might tend to 13
incriminate the person or make the person liable to a penalty. 14
(13) If-- 15
(a) before answering a question put to the person at the examination, 16
the person claims that the answer might tend to incriminate the 17
person or make the person liable to a penalty; and 18
(b) the answer might in fact tend to incriminate the person or make 19
the person liable to a penalty; 20
the answer is not admissible in evidence against the person in-- 21
(c) a criminal proceeding; or 22
(d) a proceeding for the imposition of a penalty; 23
other than a proceeding for an offence against this section or another 24
proceeding in relation to the falsity of the answer. 25
(14) The court may order the questions put to the person and the answers 26
given by the person at the examination to be recorded in writing and may 27
require the person to sign the record. 28
(15) Subject to subsection (13), any written record of the examination 29
signed by the person, or any transcript of the examination that is 30
authenticated by the signature of the examiner, may be used in evidence in 31
any legal proceeding against the person. 32
82
Government Owned Corporations
(16) The person may, at his or her own expense, employ counsel or a 1
solicitor, and the counsel or solicitor may put to the person questions that 2
the court considers just for the purpose of enabling the person to explain or 3
qualify any answers given by the person. 4
(17) The court may adjourn the examination from time to time. 5
(18) If the court is satisfied that the order for the examination of the 6
person was obtained without reasonable cause, the court may order the 7
whole or any part of the costs incurred by the person be paid by the State. 8
to grant relief 9
Power
Clause143.(1) This section applies to a director, the chief executive officer or 10
an employee of a statutory GOC. 11
(2) If, in a proceeding against a person to whom this section applies for 12
negligence, default, breach of trust or breach of duty as a person to whom 13
this section applies, it appears to the court that-- 14
(a) the person is or may be liable for the negligence, default or 15
breach; but 16
(b) the person has acted honestly and, having regard to all the 17
circumstances of the case (including circumstances connected 18
with the person's appointment) the person ought fairly to be 19
excused for the negligence, default or breach; 20
the court may relieve the person (in whole or part) from liability on terms 21
that the court considers appropriate. 22
(3) If a person to whom this section applies believes that a claim will or 23
might be made against the person for negligence, default, breach of trust or 24
breach of duty as a person to whom this section applies, the person may 25
apply to the Supreme Court or a District Court for relief. 26
(4) The court has the same power to relieve the person as it would have if 27
a proceeding had been brought against the person in the court for the 28
negligence, default or breach. 29
(5) If-- 30
(a) a proceeding mentioned in subsection (2) is being tried by a 31
Judge with a jury; and 32
83
Government Owned Corporations
(b) the Judge, after hearing the evidence, is satisfied that the 1
defendant ought under that subsection be relieved (in whole or 2
part) from the liability sought to be enforced against the person; 3
the Judge may withdraw the case (in whole or part) from the jury and direct 4
that judgment be entered for the defendant on the terms (as to costs or 5
otherwise) that the Judge considers appropriate. 6
or misleading information or documents 7
False
Clause144.(1) In this section-- 8
"officer" of a statutory GOC means-- 9
(a) a director of the GOC; or 10
(b) the GOC's chief executive officer; or 11
(c) an employee of the GOC. 12
(2) An officer of a statutory GOC must not-- 13
(a) make a statement concerning the affairs of the GOC to another 14
officer or the shareholding Ministers that the first officer knows is 15
false or misleading in a material particular; or 16
(b) omit from a statement concerning the GOC's affairs made to 17
another officer or the shareholding Ministers anything without 18
which the statement is, to the first officer's knowledge, 19
misleading in a material particular. 20
(3) A complaint against a person for an offence against subsection (2)(a) 21
or (b) is sufficient if it states that the information given was false or 22
misleading to the person's knowledge. 23
(4) An officer of a statutory GOC must not give to another officer or the 24
shareholding Ministers a document containing information that the first 25
officer knows is false, misleading or incomplete in a material particular 26
without-- 27
(a) indicating to the recipient that the document is false, misleading or 28
incomplete and the respect in which the document is false, 29
misleading or incomplete; and 30
(b) giving the correct information to the recipient if the first officer 31
has, or can reasonably obtain, the correct information. 32
84
Government Owned Corporations
Maximum penalty-- 1
(a) if the contravention is committed with intent to deceive or defraud 2
the GOC, creditors of the GOC or creditors of another person or 3
for another fraudulent purpose--500 penalty units or 4
imprisonment for 5 years; or 5
(b) in any other case--100 penalty units. 6
2--Company GOCs 7
Division
of Corporations Law to officers of company GOC 8
Application
In determining for the purposes of the Corporations Law the 9
Clause145.(1)
degree of care and diligence that a reasonable person in a like position in a 10
company GOC would exercise in the circumstances of the company GOC 11
concerned, regard must be had to-- 12
(a) the application of this Act to the GOC; and 13
(b) relevant matters required or permitted to be done under this Act in 14
relation to the GOC; 15
including, for example-- 16
(c) any relevant community service obligations of the GOC; and 17
(d) any relevant directions, notifications or approvals given to the 18
GOC by the GOC's shareholding Ministers. 19
(2) This section has effect despite the Corporations Law. 20
Division 3--GOCs generally 21
of Corporations Law to officers of subsidiaries of GOCs 22
Application
In determining for the purposes of the Corporations Law the 23
Clause146.(1)
degree of care and diligence that a reasonable person in a like position in a 24
subsidiary of a GOC would exercise in the circumstances of the subsidiary 25
of the GOC concerned, regard must be had to-- 26
(a) the application of this Act to the GOC and subsidiary; and 27
85
Government Owned Corporations
(b) relevant matters required or permitted to be done under this Act in 1
relation to the GOC and subsidiary; 2
including, for example-- 3
(c) any relevant community service obligations of the GOC; and 4
(d) any relevant directions, notifications or approvals given to the 5
GOC by the GOC's shareholding Ministers. 6
(2) This section has effect despite the Corporations Law. 7
of suspected insolvency otherwise than because of direction or 8
Notice
notification 9
If-- 10
Clause147.(1)
(a) a GOC's board suspects that the GOC or a subsidiary of the 11
GOC is, may be, will or may become insolvent; and 12
(b) in the board's opinion, compliance with a direction or notification 13
given by the shareholding Ministers is not or would not be the 14
cause or a substantial cause of the suspected insolvency; 15
the board must immediately give written notice to the shareholding 16
Ministers and the Auditor-General of-- 17
(c) the suspicion; and 18
(d) its reasons for the opinion. 19
(2) The notice must state that it is given under this section. 20
(3) If the shareholding Ministers are satisfied that the board's suspicion 21
is well-founded, the shareholding Ministers must immediately give the 22
board the written directions that the shareholding Ministers consider 23
necessary or desirable, including any directions necessary or desirable to 24
ensure-- 25
(a) that the GOC or subsidiary does not incur further debts; or 26
(b) that the GOC or subsidiary will be able to pay all its debts as and 27
when they become due. 28
(4) Without limiting subsection (3), a direction under this section may 29
require the GOC or any of its subsidiaries to cease or limit particular 30
activities. 31
86
Government Owned Corporations
(5) The board must ensure that a direction under this section is complied 1
with in relation to the GOC and must, as far as practicable, ensure that it is 2
complied with in relation to its subsidiaries. 3
(6) The shareholding Ministers must cause a copy of the direction to be 4
published in the Gazette within 21 days after it is given. 5
(7) This section is in addition to, and does not limit, another provision of 6
this Act or another law. 7
(8) This section has effect despite the Corporations Law. 8
ART 13--LEGAL CAPACITY AND POWERS 9
P
Division 1--Statutory GOCs 10
of Division 11
Objects
Clause148. The objects of this Division include-- 12
(a) abolishing any application of the doctrine of ultra vires to 13
statutory GOCs; and 14
(b) ensuring that statutory GOCs give effect to any restrictions on 15
their objects or powers, but without affecting the validity of their 16
dealings with outsiders. 17
powers of statutory GOCs 18
General
A statutory GOC has, for or in connection with the 19
Clause149.(1)
performance of its functions, all the powers of a natural person, including, 20
for example, the power to-- 21
(a) enter into contracts; and 22
(b) acquire, hold, dispose of and deal with property; and 23
(c) appoint agents and attorneys; and 24
(d) charge, and fix terms, for goods, services and information 25
87
Government Owned Corporations
supplied by it; and 1
(e) engage consultants; and 2
(f) do all other things necessary or convenient to be done for, or in 3
connection with, the performance of its functions. 4
(2) Without limiting subsection (1), the GOC has the powers that are 5
conferred on it by this or another Act. 6
(3) The GOC may exercise its powers inside and outside Queensland. 7
(4) Without limiting subsection (3), the GOC may exercise its powers in 8
a foreign country. 9
(5) The fact that the doing of an act by the GOC would not be, or is not, 10
in its best interests does not affect its power to do the act. 11
(6) In this section-- 12
"power" includes legal capacity. 13
on powers of statutory GOCs 14
Restrictions
Section 149 (General powers of statutory GOCs) has effect 15
Clause150.(1)
in relation to a statutory GOC subject to any restrictions on the GOC's 16
powers expressly imposed under this or another Act. 17
(2) Section 149 also has effect in relation to the GOC subject to any 18
restrictions expressly imposed by-- 19
(a) any relevant statement of corporate intent of the GOC; and 20
(b) any relevant directions, notifications or approvals given to the 21
GOC by the GOC's shareholding Ministers. 22
(3) If-- 23
(a) the GOC exercises a power contrary to a restriction mentioned in 24
subsection (1) or (2); or 25
(b) the Act by which the GOC is established, or a regulation under 26
this Act, sets out the GOC's objects or functions and the GOC 27
does an act otherwise than in pursuance of the objects or 28
functions; 29
the GOC contravenes this subsection. 30
88
Government Owned Corporations
(4) The exercise of the power mentioned in subsection (3)(a), or the act 1
mentioned in subsection (3)(b), is not invalid merely because of the 2
contravention. 3
(5) An officer of the GOC who is involved in the contravention 4
contravenes this subsection. 5
(6) An act of the officer is not invalid merely because, by doing the act, 6
the officer contravenes subsection (5). 7
(7) The GOC or officer of the GOC is not guilty of an offence merely 8
because of the relevant contravention. 9
(8) The fact that-- 10
(a) by exercising the powers mentioned in subsection (3)(a), or doing 11
the act as mentioned in subsection (3)(b), the GOC contravened, 12
or would contravene, subsection (3); or 13
(b) by doing a particular act, an officer of the GOC contravened, or 14
would contravene, subsection (5); 15
may be asserted or relied on only in proceedings between the shareholding 16
Ministers or the State and officers of the GOC. 17
(9) In this section-- 18
"officer" of a statutory GOC means-- 19
(a) a director of the GOC; or 20
(b) the GOC's chief executive officer; or 21
(c) an employee of the GOC; 22
"restriction" includes prohibition. 23
having dealings with statutory GOCs etc. 24
Persons
A person having dealings with a statutory GOC is entitled to 25
Clause151.(1)
make the assumptions mentioned in subsection (3) and, in a proceeding in 26
relation to the dealings, any assertion by the GOC that the matters that the 27
person is entitled to assume were not correct must be disregarded. 28
(2) A person having dealings with a person who has acquired, or 29
purports to have acquired, title to property from a statutory GOC (whether 30
directly or indirectly) is entitled to make the assumptions mentioned in 31
89
Government Owned Corporations
subsection (3) and, in a proceeding in relation to the dealings, any assertion 1
by the GOC or the second person that the matters that the first person is 2
entitled to assume were not correct must be disregarded. 3
(3) The assumptions that a person is, because of subsection (1) or (2), 4
entitled to make are-- 5
(a) that, at all relevant times, the Act by which the entity that became 6
the GOC is established (if any) and this Act have been complied 7
with; and 8
(b) that a person who is held out by the GOC to be an officer or agent 9
of the GOC has been properly appointed and has authority to 10
exercise the powers and perform the functions customarily 11
exercised or performed by an officer or agent of the kind 12
concerned; and 13
(c) that an officer or agent of the GOC who has authority to issue a 14
document on behalf of the GOC has authority to warrant that the 15
document is genuine and that an officer or agent of the GOC who 16
has authority to issue a certified copy of a document on behalf of 17
the GOC has authority to warrant that the copy is a true copy; and 18
(d) that a document has been properly sealed by the GOC if-- 19
(i) it bears what appears to be an imprint of the GOC's seal; 20
and 21
(ii) the sealing of the document appears to be authenticated by a 22
person who, because of paragraph (b), may be assumed to 23
be a director of the GOC or the GOC's chief executive 24
officer; and 25
(e) that the directors, chief executive officer, employees and agents of 26
the GOC have properly performed their duties to the GOC. 27
(4) However, a person is not entitled to assume a matter mentioned in 28
subsection (3) if-- 29
(a) the person has actual knowledge that the assumption would be 30
incorrect; or 31
(b) because of the person's connection or relationship with the GOC, 32
the person ought to know that the assumption would be incorrect. 33
(5) If, because of subsection (4), a person is not entitled to make a 34
90
Government Owned Corporations
particular assumption-- 1
(a) if the assumption is in relation to dealings with the 2
GOC--subsection (1) does not apply to any assertion by the 3
GOC in relation to the assumption; or 4
(b) if the assumption is in relation to an acquisition or purported 5
acquisition from the GOC of title to property--subsection (2) 6
does not apply to any assertion by the GOC or another person in 7
relation to the assumption. 8
(6) In this section-- 9
"officer" of a statutory GOC means-- 10
(a) a director of the GOC; or 11
(b) the GOC's chief executive officer; or 12
(c) an employee of the GOC. 13
2--Company GOCs 14
Division
powers of company GOCs 15
General
A company GOC has, in addition to powers conferred on it 16
Clause152.(1)
by the Corporations Law-- 17
(a) the power to do all things necessary or convenient to be done for, 18
or in connection with, the performance of its functions; and 19
(b) the powers that are conferred on it by this or another Act. 20
(2) Subsection (1) has effect subject to any restrictions on the GOC's 21
powers expressly imposed by this or another Act. 22
of ultra vires etc. not revived 23
Doctrine
The doctrine of ultra vires is not revived in relation to 24
Clause153.(1)
company GOCs by this Act. 25
(2) The abolition of the doctrine by the Corporations Law is not affected 26
by this Act. 27
(3) This section is enacted for the removal of doubt. 28
91
Government Owned Corporations
ART 14--FINANCE 1
P
Division 1--Taxation 2
to State taxes 3
Liability
A GOC is not exempt from State tax merely because it is a 4
Clause154.(1)
GOC. 5
(2) A subsidiary of a GOC is not exempt from State tax merely because 6
it is a subsidiary of a GOC. 7
(3) A regulation may exempt a GOC or a subsidiary of a GOC from 8
liability to pay a State tax (in whole or part). 9
(4) State tax is not payable in relation to anything done (including, for 10
example, a transaction entered into or an instrument made, executed, lodged 11
or given) because of, or for a purpose connected with or arising out of, 12
Chapter 2 or Part 3 of this Chapter. 13
(5) The GOC Minister may certify that a specified matter, instrument, 14
transaction or thing is exempt from State tax under subsection (3) or (4), 15
and the matter, instrument, transaction or thing is exempt from State tax. 16
(6) So far as the legislative power of the Parliament permits, the 17
reference in subsection (4) to State tax includes a reference to tax imposed 18
under an Act of another State or a Territory. 19
for Commonwealth tax equivalents 20
Liability
A GOC must from time to time pay to the GOC Minister for 21
Clause155.(1)
payment into the Consolidated Fund amounts ("tax equivalents") that the 22
GOC's tax assessor determines to be the value of benefits derived by the 23
GOC because it is not liable to pay Commonwealth tax that would be 24
payable if it were neither a GOC nor a government entity. 25
(2) In making a determination under subsection (1), the GOC's tax 26
assessor must ignore the effect of an instrument to which the GOC is a 27
party if a purpose and effect of entering into the instrument would be, in the 28
opinion of the GOC's tax assessor, to reduce an amount otherwise payable 29
to the GOC Minister by the GOC under this section but increase the amount 30
92
Government Owned Corporations
of Commonwealth tax payable by another person. 1
(3) Payments are to be made under subsection (1) on the terms (the 2
"terms of payment") that the GOC's tax assessor determines to be 3
equivalent to the terms on which amounts of Commonwealth tax would be 4
payable by the GOC if the GOC were neither a GOC nor a government 5
entity. 6
(4) Determinations by the GOC's tax assessor are final. 7
(5) The GOC Minister and the GOC's board may enter into an 8
agreement regarding the GOC's liability to pay amounts under this section. 9
(6) Without limiting subsection (5), an agreement under the 10
subsection may-- 11
(a) fix the amounts to be paid by the GOC under this section and the 12
terms on which they are to be paid; or 13
(b) provide that the tax equivalents or terms of payment are to be 14
determined by the GOC's tax assessor as specified in the 15
agreement. 16
(7) An agreement under subsection (5) has effect despite anything else in 17
this section. 18
(8) The GOC Minister may, after consultation with a GOC's board, 19
appoint a person to be the GOC's tax assessor. 20
(9) In this section-- 21
"GOC" includes all subsidiaries of the GOC. 22
Division 2--Borrowings and guarantees 23
of the Statutory Bodies Financial Arrangements Act 24
Application
A GOC is a statutory body for the purposes of the Statutory 25
Clause156.
Bodies Financial Arrangements Act 1982. 26
for borrowing 27
Procedures
A GOC may borrow in accordance with its policies, as 28
Clause157.(1)
outlined in its statement of corporate intent, to minimise and manage any 29
93
Government Owned Corporations
risk of investments and borrowings that may adversely affect its financial 1
stability. 2
(2) If a proposed borrowing is in accordance with those policies, the 3
Statutory Bodies Financial Arrangements Act 1982 does not apply to the 4
borrowing. 5
by State 6
Guarantees
Clause158. The State is liable for the debts and other liabilities of a GOC or 7
its subsidiaries only if, and to the extent that, the liability is expressly and 8
lawfully undertaken on behalf of the State. 9
Division 3--Dividends 10
of dividends 11
Payment
Clause159.(1) Within 1 month after the end of each financial year, a GOC's 12
board must advise the shareholding Ministers of the recommendation that, 13
in the light of the information then available to the board, it is likely to make 14
under subsection (2). 15
(2) Within 4 months after the end of the financial year, the board must 16
recommend to the shareholding Ministers that the GOC and its subsidiaries 17
pay a specified dividend, or not pay a dividend, for the financial year. 18
(3) The board must consult with the shareholding Ministers before 19
making the recommendation. 20
(4) Within 1 month after receiving the recommendation, the shareholding 21
Ministers must either-- 22
(a) approve the recommendation; or 23
(b) direct the payment of a specified dividend or a different specified 24
dividend, as the case requires. 25
(5) If the GOC is a statutory GOC, the dividend for a financial year must 26
not exceed its profits, after-- 27
(a) provision has been made for income tax or its equivalent; and 28
(b) any unrealised capital gains from upwards revaluation of 29
94
Government Owned Corporations
non-current assets have been excluded. 1
(6) If the GOC is a company GOC, the dividend for a financial year 2
must not exceed the amount allowed under the Corporations Law. 3
(7) The dividend must be paid within 6 months after the end of the 4
financial year or any further period that the shareholding Ministers allow. 5
(8) The shareholding Ministers must cause a copy of a direction given 6
under subsection (4)(b) to be published in the Gazette within 21 days after it 7
is given. 8
dividends 9
Interim
The shareholding Ministers of a GOC may, at any time after 10
Clause160.(1)
1 January in a financial year, require the GOC's board to make a 11
recommendation about the payment of interim amounts to the State 12
(including the times at which the amounts are to be paid) on account of the 13
dividend that may become payable under section 159 (Payment of 14
dividends) for the financial year. 15
(2) Within 1 month after receiving notice of the requirement, the board 16
must make a recommendation to the shareholding Ministers. 17
(3) The shareholding Ministers must, within 1 month after receiving the 18
recommendation, either-- 19
(a) approve the recommendation; or 20
(b) direct the payment, at specified times, of specified amounts, or 21
different specified amounts, on account of the dividend that may 22
become payable for the financial year. 23
(4) A direction under subsection (3)(b) must not direct the payment of an 24
amount that exceeds the GOC's estimated profit for the first 6 months of 25
the financial year, after-- 26
(a) provision has been made for income tax or its equivalent; and 27
(b) any unrealised capital gains from upwards revaluation of 28
non-current assets have been excluded. 29
(5) The shareholding Ministers must cause a copy of a direction under 30
subsection (3)(b) to be published in the Gazette within 21 days after it is 31
given. 32
95
Government Owned Corporations
ART 15--ACQUISITION AND DISPOSAL OF 1
P
ASSETS AND SUBSIDIARIES 2
power of shareholding Ministers to direct that asset not be 3
Reserve
disposed of 4
Clause161.(1) The shareholding Ministers of a GOC may, after consultation 5
with the board of a GOC, give the board a written direction requiring the 6
GOC or a subsidiary of the GOC not to dispose of a specified asset. 7
(2) The board must ensure that the direction is complied with in relation 8
to the GOC and must, as far as practicable, ensure that it is complied with in 9
relation to any relevant subsidiary. 10
(3) The shareholding Ministers must cause a copy of the direction to be 11
published in the Gazette within 21 days after it is given. 12
of main undertakings 13
Disposal
A GOC or a subsidiary of a GOC may dispose of any of its 14
Clause162.(1)
main undertakings only with the prior written approval of the shareholding 15
Ministers. 16
(2) In subsection (1)-- 17
"main undertakings" means the undertakings specified in the GOC's 18
most recent statement of corporate intent as the GOC's or subsidiary's 19
main undertakings. 20
and disposing of subsidiaries 21
Acquiring
A GOC or a subsidiary of a GOC may-- 22
Clause163.
(a) form, or participate in the formation of, a company that will 23
become a subsidiary; or 24
(b) acquire shares or participate in any other transaction that will 25
result in a body corporate becoming or ceasing to be a subsidiary; 26
only with the prior written approval of the shareholding Ministers. 27
96
Government Owned Corporations
ART 16--EMPLOYEES 1
P
Division 1--Application of Part to GOC subsidiaries 2
applies to subsidiaries 3
Part
This Part applies to a subsidiary of a GOC and its employees in 4
Clause164.
the same way as it applies to the GOC and its employees. 5
Division 2--Statutory GOCs 6
of statutory GOC 7
Employees
A statutory GOC may engage the employees that it considers 8
Clause165.
necessary to perform its functions. 9
of employment 10
Terms
The terms of employment of the employees of a statutory 11
Clause166.(1)
GOC are as determined by the GOC. 12
(2) Subsection (1) has effect subject to-- 13
(a) this Act or another Act prescribed by regulation for the purposes 14
of this section; or 15
(b) any relevant award or industrial agreement. 16
(3) The Public Sector Management Commission Act 1990 does not apply 17
to a statutory GOC or its employees. 18
3--Company GOCs 19
Division
of certain Acts 20
Application
The Public Sector Management Commission Act 1990 does not 21
Clause167.
apply to a company GOC or its employees. 22
97
Government Owned Corporations
Division 4--GOCs generally 1
of senior executives 2
Appointment
The senior executives of a GOC are to be appointed by the 3
Clause168.(1)
Governor in Council on the recommendation of the GOC's board. 4
(2) This section has effect despite the Corporations Law. 5
relating to staff 6
Arrangements
A GOC may arrange with the chief executive of a 7
Clause169.(1)
department, or with an authority of the State, for the services of officers or 8
employees of the department or authority to be made available to it. 9
(2) A GOC may arrange with the appropriate authority of the 10
Commonwealth, another State or a Territory, or with an authority of the 11
Commonwealth, another State or a Territory, for the services of officers or 12
employees of the public service of the Commonwealth, State or Territory, 13
or of the authority, to be made available to it. 14
(3) A GOC may arrange for the service of an employee of the GOC to 15
be made available to-- 16
(a) the Commonwealth, another State or a Territory; or 17
(b) an authority of the Commonwealth, another State or a Territory. 18
of Equal Opportunity in Public Employment Act 19
Application
A GOC is a unit of the public sector for the purposes of the 20
Clause170.
Equal Opportunity in Public Employment Act 1992. 21
and industrial relations plan 22
Employment
A GOC's board must prepare an employment and industrial 23
Clause171.(1)
relations plan. 24
(2) The plan must specify the arrangements for all major employment 25
and industrial relations issues for the GOC. 26
(3) The plan must include the following matters-- 27
98
Government Owned Corporations
(a) the GOC's remuneration arrangements, including-- 1
(i) the remuneration payable to its chief executive officer and 2
other senior executives; and 3
(ii) any gain sharing schemes; 4
(b) other employment conditions applicable to its employees; 5
(c) the approximate number of its employees that are covered by an 6
award or industrial agreement; 7
(d) the approximate number of its employees that are employed 8
under an employment contract; 9
(e) its redundancy policies; 10
(f) the superannuation arrangements for its employees; 11
(g) a summary of the outcome of consultations in relation to the plan. 12
(4) The plan may specify measures to ensure adherence to it. 13
(5) The employment and industrial relations plan must be included in the 14
GOC's statement of corporate intent. 15
(6) The shareholding Ministers may, by written notice, direct the board to 16
take specified steps in relation to the preparation or review of the 17
employment and industrial relations plan. 18
(7) In preparing or reviewing the plan, the board must consult with-- 19
(a) the Public Sector Management Commission; and 20
(b) the department that deals with industrial relations; and 21
(c) interested industrial organisations and employees. 22
(8) A direction under subsection (6) may specify the extent to which 23
consultations are required either generally or in relation to a particular 24
person or body. 25
(9) The board must provide the shareholding Ministers with information 26
about the outcome of the consultations. 27
schemes 28
Superannuation
A GOC may, with the prior approval of the Governor in 29
Clause172.(1)
99
Government Owned Corporations
Council, establish and maintain, or participate in, a scheme to provide 1
superannuation benefits to the GOC's employees and, for that purpose-- 2
(a) establish and maintain any fund; and 3
(b) contribute to the scheme. 4
(2) The GOC may, with the prior approval of the Governor in Council, 5
amend a scheme established by it. 6
for officers and employees who were previously 7
Superannuation
officers of the public service 8
Clause173.(1) In this section-- 9
"person to whom this section applies" means a person employed by a 10
GOC in a permanent or full-time capacity who, immediately before 11
becoming employed, was a contributor to the State Service 12
Superannuation Fund or a member of the State Public Sector 13
Superannuation Scheme. 14
(2) If, at the time a person to whom this section applies becomes 15
employed by a GOC, the GOC does not maintain or participate in a 16
superannuation scheme for the benefit of its employees, the person is to 17
continue to be a contributor to the State Service Superannuation Fund or a 18
member of the State Public Sector Superannuation Scheme and, for that 19
purpose, is taken to be an officer within the meaning of the State Service 20
Superannuation Act 1972 or eligible for membership of the scheme under 21
the Superannuation (State Public Sector) Act 1990. 22
(3) If-- 23
(a) the GOC subsequently maintains or participates in a 24
superannuation scheme for the benefit of its employees (other 25
than the State Service Superannuation Fund or the State Public 26
Sector Superannuation Scheme); and 27
(b) a person continued to be a contributor to the fund, or a member of 28
the scheme, under subsection (2); 29
the person may, under arrangements prescribed by regulation, stop being a 30
contributor or member and become a member of the scheme maintained or 31
participated in by the GOC. 32
100
Government Owned Corporations
of leave entitlements of certain former officers and 1
Preservation
employees of government entities 2
If-- 3
Clause174.
(a) a person becomes employed by a GOC in a permanent or 4
full-time capacity within 1 year after the GOC becomes a GOC; 5
and 6
(b) the person was an officer or employee of a government entity, 7
who was employed in a permanent or full-time capacity, 8
immediately before becoming employed by the GOC; and 9
(c) the person had leave entitlement at that time that had been accrued 10
as an officer or employee of a government entity; 11
the person must be treated as having accrued the entitlements as an 12
employee of the GOC. 13
of return to public service 14
Right
If-- 15
Clause175.(1)
(a) a person becomes employed by a GOC in a permanent or 16
full-time capacity within 1 year after the GOC becomes a GOC; 17
and 18
(b) the person was an officer of the public service, who was 19
employed in a permanent or full-time capacity, immediately 20
before becoming employed by the GOC; and 21
(c) the person elects to re-become an officer of the public service 22
within that period of 1 year or any further period that the 23
shareholding Ministers allow; 24
the person is entitled to re-become an officer of the public service. 25
(2) If the person re-becomes an officer of the public service under 26
subsection (1)-- 27
(a) the person's initial terms of employment must not be less 28
favourable than the terms of employment that applied to the 29
person before the person became employed by the GOC; and 30
(b) for the purpose of calculating and providing the person's 31
superannuation and leave entitlements, the person is to be treated 32
101
Government Owned Corporations
as-- 1
(i) not having left the public service when the person became 2
employed by the GOC; and 3
(ii) having been an officer of the public service while the person 4
was employed by the GOC. 5
PART 17--OTHER MATTERS 6
Division 1--GOCs generally 7
of Electoral and Administrative Review Act 8
Application
The Electoral and Administrative Review Act 1989 does not 9
Clause176.
apply to a GOC. 10
of Parliamentary Commissioner Act 11
Application
The Parliamentary Commissioner Act 1974 does not apply to a 12
Clause177.
GOC. 13
of Chapter to subsidiaries of GOCs by regulation 14
Application
A regulation may provide that a provision of this Chapter 15
Clause178.
applies to a subsidiary of a GOC, with any necessary modifications and 16
with any modifications prescribed by regulation, as if it were a GOC or a 17
GOC of a particular type. 18
Division 2--Statutory GOCs 19
tatutory GOC's seal 20
S
A statutory GOC's seal is to be kept in the custody directed 21
Clause179.(1)
by the board and may be used only as authorised by the board. 22
102
Government Owned Corporations
(2) The affixing of the seal to a document must be attested by-- 1
(a) 2 or more directors; or 2
(b) at least 1 director and the chief executive officer; or 3
(c) a director or the chief executive officer and 1 or more persons 4
authorised by the board. 5
(3) Judicial notice must be taken of the imprint of the statutory GOC's 6
seal appearing on a document. 7
of documents 8
Authentication
A document made by a statutory GOC (other than a document 9
Clause180.
that is required by law to be sealed) is sufficiently authenticated if it is 10
signed by-- 11
(a) the chairperson of the board; or 12
(b) the chief executive officer; or 13
(c) a person authorised to sign the document by-- 14
(i) resolution of the board; or 15
(ii) direction of the chief executive officer. 16
notice of certain signatures 17
Judicial
Clause181. Judicial notice must be taken of-- 18
(a) the official signature of a person who is or has been chairperson 19
of the board of a statutory GOC, a director or chief executive 20
officer of a statutory GOC; and 21
(b) the fact that the person holds or has held the office concerned. 22
of Criminal Justice Act 23
Application
A statutory GOC is a unit of public administration for the 24
Clause182.
purposes of the Criminal Justice Act 1989. 25
103
Government Owned Corporations
3--Company GOCs 1
Division
of Criminal Justice Act 2
Application
A company GOC is not a unit of public administration for the 3
Clause183.
purposes of the Criminal Justice Act 1989. 4
CHAPTER 4--MISCELLANEOUS 5
onitoring and assessment of GOCs 6
M
The shareholding Ministers of a GOC may delegate their 7
Clause184.(1)
powers under section 133 (Board to keep shareholding Ministers informed) 8
to any person. 9
(2) The shareholding Ministers of a GOC may request the chief 10
executive of the department (the "chief executive") to investigate, and 11
report to them on, any matter relating to the GOC or a subsidiary or 12
proposed subsidiary of the GOC. 13
(3) The responsible Ministers of a candidate GOC may request the chief 14
executive to investigate, and report to them on, any matter relating to the 15
candidate GOC or a subsidiary or proposed subsidiary of the candidate 16
GOC. 17
(4) For the purposes of an investigation under this section of a matter 18
relating to a GOC or candidate GOC (the "entity") or a subsidiary or 19
proposed subsidiary of the entity, the chief executive may give the entity 20
written directions. 21
(5) Without limiting subsection (4), the chief executive may direct the 22
entity-- 23
(a) to give to the chief executive any information about the entity and 24
its subsidiaries and proposed subsidiaries that the chief executive 25
considers necessary or desirable in connection with the 26
investigation; and 27
(b) to permit persons authorised by the chief executive to have access 28
104
Government Owned Corporations
to specified records and other documents about the entity and its 1
subsidiaries and proposed subsidiaries that the chief executive 2
considers necessary or desirable in connection with the 3
investigation; and 4
(c) to take steps that the chief executive considers necessary or 5
desirable for the purposes of the investigation. 6
(6) The entity must ensure that any direction given to it under this 7
section is complied with in relation to itself and must, as far as practicable, 8
ensure that it is also complied with in relation to its subsidiaries and 9
proposed subsidiaries. 10
(7) The chief executive may delegate to an officer of the department, an 11
officer of the relevant portfolio Minister's department or another person the 12
chief executive's powers under this section (including powers delegated to 13
the chief executive under subsection (1)). 14
of documents to board 15
Giving
If this Act authorises or requires a document to be given to the 16
Clause185.
board of a GOC or a candidate GOC, it may be given to the chairperson of 17
the board. 18
for offences 19
Proceedings
Clause186.(1) In this section-- 20
"prescribed offence" means an offence against this Act for which the 21
maximum penalty of imprisonment is 2 years or more. 22
(2) A proceeding for a prescribed offence may, at the election of the 23
prosecution, be taken-- 24
(a) by way of summary proceedings under the Justices Act 1886; or 25
(b) on indictment. 26
(3) Any other offence against this Act is a summary offence. 27
(4) A proceeding must be before a Magistrate if it is a proceeding-- 28
(a) with a view to the summary conviction of a person on a charge of 29
a prescribed offence; or 30
105
Government Owned Corporations
(b) for an examination of witnesses in relation to a charge for a 1
prescribed offence. 2
(5) However, if a proceeding for a prescribed offence is brought before a 3
justice who is not a Magistrate, jurisdiction is limited to taking or making a 4
procedural action or order within the meaning of the Justices of the Peace 5
and Commissioners for Declarations Act 1991. 6
(6) A proceeding for an offence by way of a summary proceeding under 7
the Justices Act 1886 must start-- 8
(a) within 1 year after the commission of the offence; or 9
(b) within 1 year after the offence comes to the complainant's 10
knowledge, but not later than 2 years after the commission of the 11
offence; 12
whichever is the later. 13
(7) If-- 14
(a) a person charged with a prescribed offence, in relation to which a 15
proceeding is taken by way of a summary proceeding, requests, 16
at the start of the proceeding, that the charge be prosecuted on 17
indictment; or 18
(b) the Magistrate hearing and determining a charge of a prescribed 19
offence is of the opinion that the charge ought to be prosecuted on 20
indictment; 21
the Magistrate-- 22
(c) must not hear and determine the charge as a summary offence; 23
but 24
(d) must proceed by way of an examination of witnesses in relation 25
to an indictable offence. 26
(8) If a Magistrate acts under subsection (7)-- 27
(a) any plea of the person charged, made at the start of the 28
proceeding, must be disregarded; and 29
(b) any evidence brought in the proceeding before the Magistrate 30
decided to act under subsection (7) is taken to be evidence in the 31
proceeding with a view to the committal of the person for trial or 32
sentence; and 33
106
Government Owned Corporations
(c) before committing the person for trial or sentence the Magistrate 1
must make a statement to the person in accordance with 2
section 104(2)(b) of the Justices Act 1886. 3
(9) The maximum penalty that may be imposed on a summary 4
conviction of a prescribed offence is 100 penalty units or imprisonment for 5
1 year. 6
(10) In a complaint starting a proceeding for a prescribed offence, a 7
statement that the matter of the complaint came to the complainant's 8
knowledge on a specified day is evidence of the matter of the statement. 9
10
Regulations
The Governor in Council may make regulations for the 11
Clause187.
purposes of this Act. 12
107
Government Owned Corporations
CHEDULE 1 1
¡S
DDITIONAL PROVISIONS RELATING TO BOARD 2
A
OF STATUTORY GOC 3
section 94 4
PART 1--COMPOSITION OF BOARD 5
of board 6
Composition
1. A statutory GOC's board is to consist of the number of directors that 7
are appointed by the Governor in Council. 8
and deputy chairperson 9
Chairperson
2.(1) The Governor in Council may appoint a director to be the board's 10
chairperson and another director to be the board's deputy chairperson. 11
(2) The deputy chairperson is to act as chairperson-- 12
(a) during a vacancy in the office of chairperson; and 13
(b) during all periods when the chairperson is absent from duty or is, 14
for another reason, unable to perform the functions of the office. 15
ART 2--MEETINGS AND OTHER BUSINESS OF 16
P
BOARD 17
of "required minimum number" of directors 18
Meaning
3. In this Part-- 19
"required minimum number" of directors means the number that is half 20
the number of directors of which the board for the time being consists 21
108
Government Owned Corporations
SCHEDULE 1 (continued)
or, if that number is not a whole number, the next higher whole 1
number. 2
of meetings and other business 3
Conduct
4. Subject to this Part, the board may conduct its business (including its 4
meetings) in the way it considers appropriate. 5
and places of meetings 6
Times
5.(1) Meetings of the board are to be held at the times and places that the 7
board determines. 8
(2) However, the chairperson-- 9
(a) may at any time convene a meeting; and 10
(b) must convene a meeting when requested by at least the required 11
minimum number of directors. 12
at meetings 13
Presiding
6.(1) The chairperson is to preside at all meetings at which the 14
chairperson is present. 15
(2) If the chairperson is not present at a meeting, the deputy chairperson 16
is to preside. 17
(3) If both the chairperson and deputy chairperson are not present at a 18
meeting, the director chosen by the directors present at the meeting is to 19
preside. 20
and voting at meetings 21
Quorum
7.(1) At a meeting of the board-- 22
(a) the required minimum number of directors constitute a quorum; 23
and 24
(b) a question is to be decided by a majority of the votes of the 25
directors present and voting; and 26
109
Government Owned Corporations
SCHEDULE 1 (continued)
(c) each director present has a vote on each question arising for 1
decision and, if the votes are equal, the director presiding also has 2
a casting vote. 3
(2) Subclause (1)(a) has effect subject to section 135(3) (Voting by 4
interested director). 5
in meetings by telephone etc. 6
Participation
8.(1) The board may permit directors to participate in a particular 7
meeting, or all meetings, by-- 8
(a) telephone; or 9
(b) closed circuit television; or 10
(c) another means of communication. 11
(2) A director who participates in a meeting of the board under a 12
permission under subclause (1) is taken to be present at the meeting. 13
without meetings 14
Resolutions
9.(1) If at least a majority of directors sign a document containing a 15
statement that they are in favour of a resolution set out in the document, a 16
resolution in those terms is taken to have been passed at a meeting of the 17
board held on the day on which the document is signed or, if the directors 18
do not sign it on the same day, the day on which the last of the directors 19
constituting the majority signs the document. 20
(2) If a resolution is, under subclause (1), taken to have been passed at a 21
meeting of the board, each director must immediately be advised of the 22
matter and given a copy of the terms of the resolution. 23
(3) For the purposes of subclause (1), 2 or more separate documents 24
containing a statement in identical terms, each of which is signed by 1 or 25
more directors, are taken to constitute a single document. 26
110
Government Owned Corporations
SCHEDULE 1 (continued)
inutes 1
M
10. The board must keep minutes of its proceedings. 2
ART 3--PROVISIONS RELATING TO DIRECTORS 3
P
of directors 4
Appointment
11.(1) A director is to be appointed by the Governor in Council for a 5
term of not more than 5 years. 6
(2) In appointing a person as a director, the Governor in Council must 7
have regard to the person's ability to make a contribution to the statutory 8
GOC's commercial performance and implementation of its statement of 9
corporate intent. 10
(3) A person is not eligible for appointment if the person is not able to 11
manage a corporation because of section 229 of the Corporations Law. 12
of appointment not provided for under Act 13
Terms
12.(1) In relation to matters not provided for under this Act, a director 14
holds office on the terms of appointment determined by the Governor in 15
Council. 16
(2) Except as determined by the Governor in Council, a director is not 17
entitled to receive any payment, any interest in property or other valuable 18
consideration or benefit-- 19
(a) by way of remuneration as a director; or 20
(b) in connection with retirement from office, or other termination of 21
office, as a director. 22
of acting director 23
Appointment
13. The Governor in Council may appoint a person to act as a director 24
111
Government Owned Corporations
SCHEDULE 1 (continued)
during any period, or all periods, when a director is absent from duty or is, 1
for another reason, unable to perform the functions of the office. 2
3
Resignation
14.(1) A director, or person appointed under clause 2 (Chairperson and 4
deputy chairperson), may resign by signed notice given to the Governor. 5
(2) The chairperson or deputy chairperson may resign as chairperson or 6
deputy chairperson and remain a director. 7
of appointment as director 8
Termination
15.(1) The Governor in Council may, at any time, terminate the 9
appointment of all or any directors of the board for any reason or none. 10
(2) If a person who is an officer of the public service when appointed as 11
a director ceases to be an officer of the public service, the person ceases to 12
be a director. 13
112
Government Owned Corporations
CHEDULE 2 1
¡S
DDITIONAL PROVISIONS RELATING TO CHIEF 2
A
EXECUTIVE OFFICER OF STATUTORY GOC 3
section 101 4
of chief executive officer 5
Appointment
1. A statutory GOC's chief executive officer is to be appointed by the 6
Governor in Council on the recommendation of the GOC's board. 7
of acting chief executive officer 8
Appointment
2. The board may appoint a person to act as chief executive officer-- 9
(a) during a vacancy in the office; or 10
(b) during any period, or all periods, when the chief executive officer 11
is absent from duty or is, for another reason, unable to perform 12
the functions of the office. 13
of appointment not provided for under Act 14
Terms
3. In relation to matters not provided for under this Act, the chief 15
executive officer holds office on the terms of appointment determined by 16
the board. 17
18
Resignation
4. The chief executive officer may resign by signed notice given to the 19
chairperson. 20
of appointment 21
Termination
5.(1) The board may, at any time, terminate the appointment of the chief 22
executive officer for any reason or none. 23
113
Government Owned Corporations
SCHEDULE 2 (continued)
(2) The termination of the appointment of the chief executive officer 1
under subclause (1) does not affect any rights to compensation to which the 2
chief executive officer is entitled under the terms of the chief executive 3
officer's appointment. 4
5
© State of Queensland 1993
[Index] [Search] [Download] [Related Items] [Help]