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Queensland
LOCAL GOVERNMENT
LEGISLATION
AMENDMENT BILL 1997
Queensland
LOCAL GOVERNMENT LEGISLATION
AMENDMENT BILL 1997
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PART 2--AMENDMENT OF CITY OF BRISBANE ACT 1924
3 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4 Amendment of s 3 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5 Amendment of s 3A (Application of the Local Government Act) . . . . . . . . 21
6 Amendment of s 22 (Remuneration of mayor and councillors) . . . . . . . . . . 21
7 Amendment of s 39B (Delegation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8 Amendment of s 39C (Council register) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9 Amendment of s 108 (Content of budget documents) . . . . . . . . . . . . . . . . . 23
10 Amendment of s 116 (Preparation of annual financial statements) . . . . . . 23
11 Amendment of s 119 (Annual report) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
12 Amendment of s 127 (Financial management standards) . . . . . . . . . . . . . . 24
PART 3--AMENDMENT OF LOCAL GOVERNMENT ACT 1993
13 Act amended in pt 3 and schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
14 Amendment of s 4 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15 Amendment of s 7 (Meaning of "material personal interest") . . . . . . . . . . 26
16 Amendment of s 8 (Meaning of "open to inspection") . . . . . . . . . . . . . . . . 26
17 Amendment of s 9 (Act applies only so far as expressly provided) . . . . . . 27
18 Amendment of s 10 (How local government Acts apply to
Brisbane City Council) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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19 Replacement of s 137ZZI (Expiry of pt 2A) . . . . . . . . . . . . . . . . . . . . . . . . . 27
137ZZI Expiry and savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
20 Insertion of new s 173A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
173A Councillor ceases to be councillor on becoming director
of significant business entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
21 Amendment of s 386 (Delegation by local government) . . . . . . . . . . . . . . . 28
22 Amendment of s 416 (Issue of standards) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
23 Amendment of s 417 (Standards must be complied with) . . . . . . . . . . . . . . 30
24 Amendment of s 434 (Content of operating fund budgets) . . . . . . . . . . . . . . 30
25 Amendment of s 450 (Content of report about other issues of
public interest) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
26 Renumbering of ss 458B-458M . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
27 Amendment of s 458AB (Definitions for ch 7A) . . . . . . . . . . . . . . . . . . . . . . 31
28 Insertion of new ch 7A, pt 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PART 2A--IDENTIFICATION OF NEW TYPE 1 AND 2
BUSINESS ACTIVITIES
458AC Minister to decide threshold
amounts for identifying new type 1 or 2 business activities . . . . . . . 32
458AD Annual review of business activities . . . . . . . . . . . . . . . . . . . . . . . . . 33
458AE Notice to Minister of new type 1 or
2 business activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
29 Amendment of ch 7A, pt 3, heading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
30 Amendment of s 458B (Matters to be addressed by public benefit
assessment for type 1 business activity) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
31 Amendment of s 458BA (Matters to be addressed by public
benefit assessment for type 2 business activity) . . . . . . . . . . . . . . . . . . . . . . 34
32 Amendment of s 458BB (What is corporatisation) . . . . . . . . . . . . . . . . . . . . 35
33 Amendment of s 458BC (What is commercialisation) . . . . . . . . . . . . . . . . 35
34 Amendment of s 458BD (What is full cost pricing) . . . . . . . . . . . . . . . . . . . 36
35 Amendment of s 458BE (Matters to be addressed in public
benefit assessment reports) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
36 Amendment of s 458BF (Public benefit assessments to be undertaken) . . 36
37 Insertion of new s 458BG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
458BG Fresh public benefit assessment if
reforms not implemented within 3 years . . . . . . . . . . . . . . . . . . . . . . 37
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38 Amendment of s 458BI (Timing for assessments and reports) . . . . . . . . . . . 37
39 Insertion of new ch 7A, pt 3, div 4 and pts 4 to 6, and chs 7B and 7C . . . . 38
Division 4--Action to be taken on public benefit assessment reports
458BK Object of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
458BL Local government to give public
notice of public benefit assessment report . . . . . . . . . . . . . . . . . . . . . 38
458BM Public access to public benefit
assessment reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
458BN Local government to resolve
whether to implement reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
458BO Timetable for implementation of reforms . . . . . . . . . . . . . . . . . . . . . 40
458BP Notice to Minister of resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
458BQ Reforms not implemented, may
later be implemented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
PART 4--FULL COST PRICING FOR SIGNIFICANT
BUSINESS ACTIVITIES
458C Application of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
458CA Meaning of "full cost pricing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
458CB Guarantees by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
458CC Local government to implement full
cost pricing for significant business activities . . . . . . . . . . . . . . . . . . 42
PART 5--COMMERCIALISATION OF SIGNIFICANT
BUSINESS ACTIVITIES
Division 1--Preliminary
458CD Application of pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Division 2--Background and objectives of part
458CE Objectives of commercialisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
458CF How objectives of
commercialisation are to be achieved--key principles and their
elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
458CG Key objectives of commercial
business units under commercialisation . . . . . . . . . . . . . . . . . . . . . . . 44
Division 3--Interpretation
458CH Meaning of "commercialisation" . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
458CI Meaning of "key principles of commercialisation" . . . . . . . . . . . . . 45
458CJ Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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Division 4--Establishment of commercial business unit
458CK Local government to establish
commercial business unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 5--Operations of commercial business unit
458CL Additional requirements for
corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
458CM Performance plan for commercial
business units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Division 6--Annual statement of operations on commercial business unit
458CN Annual statement of operations on
commercial business unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
458CO Commonwealth and State tax equivalents . . . . . . . . . . . . . . . . . . . . 49
458CP Guarantees by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
PART 6--LOCAL GOVERNMENT OWNED CORPORATIONS
Division 1--Preliminary
Subdivision 1--Application of part
458D Application of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Subdivision 2--Outline of part and its background and objectives
458DA What this part provides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
458DB Objectives of corporatisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
458DC How objectives of corporatisation
are to be achieved--key principles and their elements . . . . . . . . . . 51
458DD Key objectives of corporatised
corporation under corporatisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Subdivision 3--Interpretation
458DE Meaning of "corporatisation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
458DF Meaning of "key principles of
corporatisation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
458DG Meaning of "statement of corporate
intent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
458DH Definitions for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
458DI References to doing of act by corporatised corporation . . . . . . . . . . 58
458DJ References to local governments etc. . . . . . . . . . . . . . . . . . . . . . . . . 58
Subdivision 4--Corporatised corporation not a local government
458DK Corporatised corporation not a local
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government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Subdivision 5--Operation of part and application of laws
458DL Extraterritorial operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
458DM Application of existing laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
458DN Delegation of powers for
corporatised corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
458DO How Corporations Law is to be
applied to corporatised corporations . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Division 2--Mechanisms for creating LGOCs and subsidiaries
Subdivision 1--Proposal for corporatisation
458E Local government proposes corporatisation . . . . . . . . . . . . . . . . . . . . 61
458EA Nomination of candidate LGOC or
LGOC's subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Subdivision 2--Preparation of corporatisation charter--preliminary
458EB Meaning of "corporatisation charter" . . . . . . . . . . . . . . . . . . . . . . . . 62
458EC Candidate LGOC's business may
become business of LGOC following corporatisation charter . . . . . 62
Subdivision 3--Preparation of corporatisation
charter--establishment committee
458ED Establishment committee to be appointed . . . . . . . . . . . . . . . . . . . . 63
458EE Composition of establishment committee . . . . . . . . . . . . . . . . . . . . . 63
458EF Procedure for appointment of
establishment committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
458EG Draft corporatisation charter to be
given to local government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Subdivision 4--Preparation of corporatisation
charter--requirements for charter
458EH Matters to be included in draft
corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
458EI Other matters relevant to draft corporatisation charter
preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Subdivision 5--Corporatisation charter--approvals
458EJ Approval of draft corporatisation charter . . . . . . . . . . . . . . . . . . . . . . 66
458EK Approval of amendments of
corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
458EL Corporatisation charter open to inspection . . . . . . . . . . . . . . . . . . . . 66
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458EM Deletion of commercially sensitive
matters from corporatisation charter . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Subdivision 6--Corporatisation charter--expiry of charter
transitional part
458EN Expiry of charter transitional part . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Subdivision 7--Corporatisation facilitative
mechanisms--significant business entities
458F Purpose of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
458FA Significant business entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
458FB Transfer of assets, liabilities etc. to
significant business entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Subdivision 8--Significant business entities--directors and employees
458FC Composition of boards including
councillors and local government employees . . . . . . . . . . . . . . . . . . 69
458FD Remuneration and allowances to
directors of significant business entities who are councillors or
employees of a local government . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
458FE Restrictions on councillors and
employees being directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
458FF Prohibition on councillors being
employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Subdivision 9--Interim board
458FG Interim board of directors for
significant business entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
458FH Application of certain provisions
about directors and executives to significant business entities . . . . 73
Subdivision 10--Corporatisation facilitative mechanisms--general
458FI Assistance to significant business entities . . . . . . . . . . . . . . . . . . . . . 74
458FJ Share capital and issue of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
458FK Variation of share capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
458FL Subdivision does not affect existing
legal relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
458FM Local government may deal with
other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Subdivision 11--Acting chief executive officer of significant
business entity on corporatisation
458FN Appointment of acting chief
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Local Government Legislation Amendment
executive officer for significant business entity on corporatisation . 76
Division 3--Local government owned corporations and subsidiaries
Subdivision 1--Declaration of LGOCs and subsidiaries
458G Declaration of entity as LGOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
458GA Requirements for LGOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
458GB Declaration of entity as subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 78
458GC Requirements for subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
458GD Declaration does not affect legal
personality etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Subdivision 2--Application of Corporations Law
458GE Application of Corporations Law to
corporatised corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
458GF Corporatised corporation exempt
public authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Subdivision 3--Shares of corporatised corporations
458GG Local governments to be
shareholder of LGOCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
458GH LGOC to be shareholder of LGOC's
subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
458GI If 2 or more local governments are shareholders, shares
and entitlements apportioned by agreement . . . . . . . . . . . . . . . . . . . 80
458GJ Variation of shares and share capital of corporatised corporation . . 80
458GK Transfer, issue etc. of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
458GL Shareholders must act jointly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Subdivision 4--Shareholders and councillors
458GM Appointment of councillors as
shareholder's delegates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Subdivision 5--Board of directors
458GN Corporatised corporation to have
board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
458GO Role of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
458GP Delegation by board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
458GQ Additional provisions about board--div 5 . . . . . . . . . . . . . . . . . . . . . 83
458GR First board of LGOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
458GS First board of LGOC subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
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Subdivision 6--Chief executive officer
458GT Corporatised corporations to have
chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
458GU Duties of chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
458GV Things done by chief executive officer . . . . . . . . . . . . . . . . . . . . . . . 84
458GW Delegation by chief executive officer . . . . . . . . . . . . . . . . . . . . . . . 85
458GX Additional provisions about chief
executive officer--div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Subdivision 7--Corporate plan--general
458H LGOC must have corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
458HA Corporate plan to apply to subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 85
Subdivision 8--Preparation, agreement on and changes to
corporate plan
458HB Draft corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
458HC Duration of corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
458HD Special procedures in relation to
draft corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
458HE Corporate plan on agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
458HF Corporate plan pending agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 87
458HG Changes to corporate plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
458HH Corporate plan open to inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
458HI Deletion of commercially sensitive matters from corporate plan . . 88
Subdivision 9--Statement of corporate intent--general
458HJ Corporatised corporations must have statements of
corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
458HK LGOC's statement of corporate
intent must be consistent with corporate plan . . . . . . . . . . . . . . . . . . 89
458HL Subsidiary's statement of corporate
intent to be consistent with LGOC's corporate plan and statement
of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Subdivision 10--Matters to be included in statement of corporate intent
458HM Matters to be included in statement
of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
458HN Deletion of commercially sensitive
matters from statement of corporate intent . . . . . . . . . . . . . . . . . . . . 91
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Subdivision 11--Preparation, agreement on and modification of
statement of corporate intent
458HO Draft statement of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . 91
458HP Consultation with industrial
organisations etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
458HQ Special procedures in relation to
draft statement of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
458HR Statement of corporate intent on
agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
458HS Statement of corporate intent
pending agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
458HT Changes to statement of corporate intent . . . . . . . . . . . . . . . . . . . . . 93
458HU Statement of corporate intent open
to inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Subdivision 12--Community service obligations
458I Meaning of "community service obligations" . . . . . . . . . . . . . . . . . . 94
458IA Community service obligations to be stated in statement
of corporate intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Subdivision 13--General reserve powers of shareholder
458IB Reserve power of shareholder to give directions to LGOC
in public interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Subdivision 14--Suspected insolvency from directions
458IC Notice of suspected insolvency because of direction . . . . . . . . . . . . 96
Subdivision 15--Limitation on local government directions
458ID Corporatised corporation and board not otherwise subject
to local government direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Subdivision 16--Reports and other accountability matters
458IE Application of Financial Administration and Audit Act . . . . . . . . . . 98
458IF Quarterly reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
458IG Annual reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
458IH Annual report open to inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
458II Omission of certain matters from annual report etc. . . . . . . . . . . . . 102
458IJ LGOC board to keep shareholder informed . . . . . . . . . . . . . . . . . . . 103
Subdivision 17--Duties and liabilities of directors and other officers
458IK Disclosure of interests by directors . . . . . . . . . . . . . . . . . . . . . . . . . . 104
10
Local Government Legislation Amendment
458IL Voting by interested director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
458IM Duty and liability of certain officers
of corporatised corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
458IN Prohibition on loans to directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
458IO When corporatised corporation not to indemnify officers . . . . . . . . 107
458IP Corporatised corporation not to pay premiums for certain
liabilities of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
458IQ Director's duty to prevent insolvent trading . . . . . . . . . . . . . . . . . . . 109
458IR Court may order compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
458IS Examination of persons concerned with corporatised
corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
458IT Power to grant relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
458IU False or misleading information or documents . . . . . . . . . . . . . . . . 114
458IV Notice of suspected insolvency otherwise than because of
direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Subdivision 18--Legal capacity and powers
458J Objects of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
458JA General powers of corporatised corporations . . . . . . . . . . . . . . . . . . 116
458JB Restrictions on powers of corporatised corporations . . . . . . . . . . . . 117
458JC Persons having dealings with corporatised corporations etc. . . . . . 118
458JD LGOC may direct subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
458JE Subsidiaries must comply with directions . . . . . . . . . . . . . . . . . . . . 120
458JF Sections 458JD and 458JE not limiting . . . . . . . . . . . . . . . . . . . . . . 120
Subdivision 19--Finance--taxation
458JG State taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
458JH Commonwealth and State tax equivalents . . . . . . . . . . . . . . . . . . . 121
Subdivision 20--Finance--borrowings and guarantees
458JI Guarantees by local government . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
458JJ Payment for cost of funds advantage of guarantees by
local government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Subdivision 21--Finance--dividends
458JK Payment of dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
458JL Interim dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
11
Local Government Legislation Amendment
458JM Dividend payment for financial year
of becoming a corporatised corporation . . . . . . . . . . . . . . . . . . . . . . 124
Subdivision 22--Acquisition and disposal of assets and subsidiaries
458JN Reserve power of shareholder to direct that asset not be
disposed of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
458JO Disposal of main undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
458JP Acquiring of other subsidiaries prohibited . . . . . . . . . . . . . . . . . . . . 126
Subdivision 23--Employees
458JQ Employees of corporatised corporations . . . . . . . . . . . . . . . . . . . . . . 126
458JR Terms of employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
458JS Arrangements relating to staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
458JT Superannuation schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
458JU Superannuation for officers and employees of corporatised
corporation who were previously officers of a local government . . 127
458JV Preservation of leave and other entitlements of certain
former employees of local government . . . . . . . . . . . . . . . . . . . . . . 128
Subdivision 24--Other matters
458K Corporatised corporation's seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
458KA Change of functions and name of
corporatised corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
458KB Authentication of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
458KC Judicial notice of certain signatures . . . . . . . . . . . . . . . . . . . . . . . . 130
458KD Application of Criminal Justice Act . . . . . . . . . . . . . . . . . . . . . . . . 130
458KE Application of Parliamentary
Commissioner Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Division 4--Miscellaneous
458KF Monitoring and assessment of
corporatised corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
458KG Giving of documents to board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
458KH Judicial notice of certain resolutions . . . . . . . . . . . . . . . . . . . . . . . . 132
458KI When resolutions amending certain resolutions take effect . . . . . . 133
458KJ Local governments and certain officers not directors etc. . . . . . . . 133
Division 5--Additional provisions relating to board of corporatised
corporations
12
Local Government Legislation Amendment
Subdivision 1--Composition of board
458L Composition of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
458LA Chairperson and deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . 134
Subdivision 2--Meetings and other business of board
458LB Meaning of "required minimum
number" of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
458LC Conduct of meetings and other business . . . . . . . . . . . . . . . . . . . . . 135
458LD Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
459LE Presiding at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
458LF Quorum and voting at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
458LG Participation in meetings by
telephone etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
458LH Resolutions without meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
458LI Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Subdivision 3--Provisions relating to directors
458LJ Appointment of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
458LK LGOC director not to be chief
executive officer or other employee of LGOC's subsidiary . . . . . . 137
458LL Procedure for appointment of directors . . . . . . . . . . . . . . . . . . . . . . 137
458LM Terms of appointment not provided
for under divs 1-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
458LN Appointment of acting director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
458LO Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
458LP Termination of appointment as director . . . . . . . . . . . . . . . . . . . . . . 139
Division 6--Additional provisions relating to chief executive officers
458LQ Appointment of chief executive officer . . . . . . . . . . . . . . . . . . . . . . 139
458LR Local government employees
cannot be chief executive officers of corporatised corporations . . 139
458LS Director may be chief executive officer . . . . . . . . . . . . . . . . . . . . . 139
458LT Appointment of acting chief
executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
458LU Terms of appointment not provided
for under divs 1 to 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
458LV Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
458LW Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
13
Local Government Legislation Amendment
CHAPTER 7B--CONDUCT OF COMPETITIVE BUSINESS
ACTIVITIES
PART 1--OBJECT AND APPLICATION
458M Object of ch 7B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
458MA Competitive neutrality principles . . . . . . . . . . . . . . . . . . . . . . . . . . 141
458MB Application to Brisbane City Council . . . . . . . . . . . . . . . . . . . . . . 141
PART 2--DEFINITIONS
458MC Definitions for ch 7B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
458MD Meaning of "business activity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
PART 3--CODE OF COMPETITIVE CONDUCT
458ME Code must be applied to roads
business activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
458MF When code must be applied to other
business activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
PART 4--ANNUAL REVIEW OF BUSINESS ACTIVITIES
458MG Annual review of business activities . . . . . . . . . . . . . . . . . . . . . . . 144
458MH Local government to resolve
whether to apply code of competitive conduct to business
activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
458MI Application of code of competitive
conduct to other activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
458MJ Information to be included in annual
report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
CHAPTER 7C--REFORM OF CERTAIN WATER AND
SEWERAGE SERVICES
PART 1--OBJECT AND APPLICATION
458N Object of ch 7C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
458NA Application to Brisbane City Council . . . . . . . . . . . . . . . . . . . . . . . 146
458NB Meaning of relevant business activity . . . . . . . . . . . . . . . . . . . . . . . 146
PART 2--DEFINITIONS
458NC Definitions for ch 7C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
PART 3--ASSESSMENT OF COST EFFECTIVENESS OF
TWO-PART TARIFFS FOR WATER SUPPLY
458ND Assessment of cost effectiveness of
two-part tariffs to be carried out . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
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Local Government Legislation Amendment
458NE Local government to resolve on
assessment and report process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
458NF Timing for assessments and reports . . . . . . . . . . . . . . . . . . . . . . . . . 148
458NG Fresh assessment within 3 years if
recommendation on two-part tariffs not implemented . . . . . . . . . . 148
458NH Regulation about assessments and reports . . . . . . . . . . . . . . . . . . . 149
PART 4--DECISION ON TWO-PART TARIFF REPORTS
458NI Object of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
458NJ Public access to two-part tariff reports . . . . . . . . . . . . . . . . . . . . . . . 149
458NK Local government to resolve
whether to apply two-part tariff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
458NL Timing for resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
458NM Notice to Minister of resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
PART 5--IMPLEMENTATION OF CERTAIN CHARGING
ARRANGEMENTS AND REPORTING PROCEDURES
458NN Local governments to implement
charging and operational arrangements for relevant business
activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
458NO Start of work to apply two-part tariffs . . . . . . . . . . . . . . . . . . . . . . . 151
458NP Timetable for implementing arrangements . . . . . . . . . . . . . . . . . . . 152
458NQ Strategies for applying s 458NN(b) to (e) . . . . . . . . . . . . . . . . . . . 152
40 Insertion of new s 464A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
464A Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
41 Amendment of s 466 (Step 1--make a law) . . . . . . . . . . . . . . . . . . . . . . . . 153
42 Amendment of s 467 (Step 2--give public notice of law) . . . . . . . . . . . . . 153
43 Insertion of new s 472A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
472A Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
44 Amendment of s 475 (Step 2--ensure proposed law satisfactorily
deals with any State interest) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
45 Amendment of s 480 (Step 7--again ensure proposed law
satisfactorily deals with any State interest) . . . . . . . . . . . . . . . . . . . . . . . . 154
46 Amendment of s 482 (Step 9--give public notice of law) . . . . . . . . . . . . . 155
47 Insertion of new s 482A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
482A Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
48 Amendment of s 488 (Step 5--make proposed policy) . . . . . . . . . . . . . . . 155
15
Local Government Legislation Amendment
49 Amendment of s 489 (Step 6--give public notice of policy) . . . . . . . . . . 155
50 Insertion of new ch 8, pt 2, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Division 5--Anti-competitive provisions of proposed local laws and
proposed local law policies
489B Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
489C Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
489D Local laws and local law policies not to be made unless
local government complies with division . . . . . . . . . . . . . . . . . . . . 157
489E Review of proposed local law or proposed local law
policy to identify possible anti-competitive provisions . . . . . . . . . 157
489F Public interest test of possible anti-competitive provisions . . . . . . 157
489G Local government to decide on test and report process . . . . . . . . . 158
489H Public interest test report to be presented to local
government meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
489I Local government to resolve whether to implement
recommendations of public interest test . . . . . . . . . . . . . . . . . . . . . 159
489J Public interest test reports are open to inspection . . . . . . . . . . . . . 160
489K Regulation about public interest tests and public interest
test reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
51 Replacement of s 672 (Proceedings for offences) . . . . . . . . . . . . . . . . . . . 160
672 Indictable and summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
672A Proceedings for indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . 160
672B Limitation on who may summarily hear indictable offence
proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
672C Limitation on time for starting summary proceedings . . . . . . . . . . 162
52 Insertion of new s 712A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
712A Proof of complainant's knowledge of matter . . . . . . . . . . . . . . . . . . 162
53 Insertion of new ss 793B-793C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
793B Application of Freedom of Information Act and Judicial
Review Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
793C Numbering and renumbering of Act . . . . . . . . . . . . . . . . . . . . . . . . . 163
54 Insertion of new ch 15, pt 1, div 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Division 3A--Anti-competitive provisions of existing local laws and
existing local law policies
16
Local Government Legislation Amendment
Subdivision 1--Preliminary
803A Application to Brisbane City Council . . . . . . . . . . . . . . . . . . . . . . . 163
803B Application of div . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
803C Definitions for div 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Subdivision 2--Anti-competitive provisions of existing local laws
and existing local law policies
803D Preliminary review of existing local laws and existing
local law policies to identify likely anti-competitive provisions . . 165
803E Timing of preliminary review and advice to Minister . . . . . . . . . . 165
803F Local government may decide likely anti-competitive
provision is not an anti-competitive provision . . . . . . . . . . . . . . . . . 165
803G Public interest test of possible anti-competitive provisions . . . . . . 166
803H Local government to decide on test and report process . . . . . . . . . 167
803I Public interest test report to be presented to local
government meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
803J Local government to resolve whether to implement
recommendations of public interest test . . . . . . . . . . . . . . . . . . . . . 167
803K Public interest test reports open to inspection . . . . . . . . . . . . . . . . . 168
803L Repeal or amendment of anti-competitive provision . . . . . . . . . . . 168
803M Timing for resolution and implementation . . . . . . . . . . . . . . . . . . . . 169
803N Simultaneous action under division 3 and other provisions . . . . . . 170
803O Transitional regulation making power about
implementation of this division . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
803P Future identification and assessment of anti-competitive
provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
PART 4--AMENDMENT OF WHISTLEBLOWERS
PROTECTION ACT 1994
55 Act amended in pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
56 Amendment of s 7 (What is the general nature of the Act's scheme?) . . 171
57 Amendment of s 10 (How must a public interest disclosure be
made (pt 4)?) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
58 Amendment of s 26 (Every public sector entity is an appropriate
entity for certain things) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
59 Amendment of s 27 (How to disclose to appropriate entity) . . . . . . . . . . . 171
60 Amendment of s 30 (Units must report to Legislative Assembly
on disclosures) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
17
Local Government Legislation Amendment
61 Amendment of s 31 (Minister must report to Legislative
Assembly on Act's administration) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
62 Insertion of new pt 4, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Division 6--Limitation on disclosure process for corporatised
corporations
37A Object of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
37B Application of Act to corporatised corporations . . . . . . . . . . . . . . . 173
63 Amendment of sch 5 (Sectional definitions) . . . . . . . . . . . . . . . . . . . . . . . . 174
64 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
PART 5--AMENDMENT OF PUBLIC SECTOR ETHICS ACT
1994
65 Act amended in pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
66 Amendment of s 2 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
PART 6--AMENDMENT OF PUBLIC SERVICE ACT 1996
67 Act amended in pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
68 Amendment of s 21 (What is a "government entity") . . . . . . . . . . . . . . . . 176
69 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
PART 7--AMENDMENT OF FREEDOM OF INFORMATION
ACT 1992
70 Act amended in pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
71 Amendment of s 7 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
72 Insertion of new s 11B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
11B Application of Act to corporatised corporations . . . . . . . . . . . . . . . 177
PART 8--AMENDMENT OF JUDICIAL REVIEW ACT 1991
73 Act amended in pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
74 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
75 Insertion of new s 18B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
18B Application of Act to corporatised corporations . . . . . . . . . . . . . . . 177
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 178
MINOR AND CONSEQUENTIAL AMENDMENTS OF LOCAL
GOVERNMENT ACT 1993
1997
A BILL
FOR
An Act to amend legislation about local government, and for other
purposes
s1 20 s3
Local Government Legislation Amendment
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
Clause 1. This Act may be cited as the Local Government Legislation 4
Amendment Act 1997. 5
6
Commencement
Clause 2. The following sections commence on a day to be fixed by 7
proclamation-- 8
· section 5(1) 9
· section 17(1) 10
· section 39 (so far as it inserts chapters 7B and 7C) 11
· sections 40 to 49 12
· section 50 13
· section 53 (so far as it inserts section 793C) 14
· section 54 (so far as it inserts sections 803G to 803N and 803P). 15
ART 2--AMENDMENT OF CITY OF BRISBANE 16
P
ACT 1924 17
amended in pt 2 18
Act
Clause 3. This part amends the City of Brisbane Act 1924. 19
s4 21 s6
Local Government Legislation Amendment
of s 3 (Interpretation) 1
Amendment
Clause 4. Section 3-- 2
insert-- 3
`(3) For the application of the Local Government Act 1993, chapters 7A 4
to 7C (the "applied provisions"), to the council, a word that is used in this 5
Act and is defined in or for the applied provisions has the meaning given 6
under the applied provisions unless a contrary intention appears or the word 7
is defined in this Act.'. 8
of s 3A (Application of the Local Government Act) 9
Amendment
Clause 5.(1) Section 3A(2), after `· chapter 7A (National competition reform of 10
significant business activities)-- 11
insert-- 12
`· chapter 7B (Conduct of competitive business activities) 13
· chapter 7C (Reform of certain water and sewerage services)'. 14
(2) Section 3A(2), after `· chapter 11 (Provisions aiding local 15
government)'-- 16
insert-- 17
`· chapter 14 (General) 18
· part 2 (Miscellaneous) 19
· section 793B (Application of Freedom of Information 20
Act and Judicial Review Act)'. 21
(3) Section 3A(2), after `· division 3 (Local laws and local law 22
policies)'-- 23
insert-- 24
`· division 3A (Anti-competitive provisions of existing local 25
laws and existing local law policies)'. 26
of s 22 (Remuneration of mayor and councillors) 27
Amendment
Clause 6.(1) Section 22, after subsection (1A)-- 28
s7 22 s8
Local Government Legislation Amendment
insert-- 1
`(1AA) Despite subsection (1A), councillors who are directors of a 2
significant business entity-- 3
(a) may receive salaries in addition to the salaries under 4
subsection (1A); but 5
(b) must receive the same additional salary. 6
`(1AB) Despite subsection (1A), councillors who are shareholder's 7
delegates for the council's LGOC-- 8
(a) may receive salaries in addition to the salaries under 9
subsection (1A); but 10
(b) must receive the same additional salary.'. 11
(2) Section 22(1B)-- 12
insert-- 13
`(e) unless otherwise determined by the council, councillors who are 14
directors of significant business entities under the Local 15
Government Act 1993, chapter 7A, part 61 may also receive 16
remuneration and allowances payable to directors of the entity.'. 17
of s 39B (Delegation) 18
Amendment
Clause 7. Section 39B-- 19
insert-- 20
`(2) This section does not apply to powers of the council as a shareholder 21
of an LGOC, under the Local Government Act 1993, chapter 7A, part 6.' 22
of s 39C (Council register) 23
Amendment
Clause 8.(1) Section 39C(1)-- 24
insert-- 25
1 Local Government Act 1993, chapter 7A, part 6 (Local Government Owned
Corporations)
s9 23 s 10
Local Government Legislation Amendment
`(da)appointments by the council of shareholder's delegates for its 1
LGOC under the Local Government Act 1993, section 458GM;2'. 2
(2) Section 39C-- 3
insert-- 4
`(5) This section applies to delegations by shareholder's delegates under 5
the Local Government Act 1993, section 458KF 3 as if the shareholder's 6
delegates were the council.'. 7
of s 108 (Content of budget documents) 8
Amendment
Clause 9. Section 108(1)-- 9
insert-- 10
`(ea) state, for each of its significant business activities to which the 11
Local Government Act 1993, chapter 7A, part 4 or 5 or chapter 12
7C4 applies, its estimated revenue and expenditure (whether by 13
note to the individual program budgets or otherwise); and'. 14
of s 116 (Preparation of annual financial statements) 15
Amendment
Clause 10. Section 116(2)(c)(iv), after `budget'-- 16
insert-- 17
`including a comparison of the estimated costs and revenue against the 18
actual revenue and expenditure for the year for its significant business 19
activities to which the Local Government Act 1993, chapter 7A, part 4 or 5 20
or chapter 7C5 applies'. 21
2 Local Government Act 1993, section 458GM (Appointment of councillors as
shareholder's delegates)
3 Local Government Act 1993, section 458KF (Monitoring and assessment of
corporatised corporations)
4 Local Government Act 1993, chapter 7A, part 4 (Full cost pricing for significant
business activities) or 5 (Commercialisation of significant business activities) or
chapter 7C (Reform of certain water and sewerage services)
5 Local Government Act 1993, chapter 7A, part 4 (Full cost pricing for significant
business activities) or 5 (Commercialisation of significant business activities) or
chapter 7C (Reform of certain water and sewerage services)
s 11 24 s 12
Local Government Legislation Amendment
of s 119 (Annual report) 1
Amendment
Clause 11. Section 119(3)-- 2
insert-- 3
`(ea) names of shareholder's delegates of the council for its LGOCs 4
for the year under the Local Government Act 1993, 5
section 458GM;6 and'. 6
of s 127 (Financial management standards) 7
Amendment
Clause 12. Section 127(2)-- 8
omit, insert-- 9
`(2) A regulation may make standards about-- 10
(a) requirements for full cost pricing and their application to 11
significant business activities of the council under the Local 12
Government Act 1993, chapter 7A, part 4; and 13
(b) commercialisation and its application to the council's commercial 14
business units under the Local Government Act 1993, chapter 7A, 15
part 5; and 16
(c) corporatisation and its application to corporatised corporations of 17
the council under the Local Government Act 1993, chapter 7A, 18
part 6;7 and 19
(d) a code of competitive conduct for application of competitive 20
neutrality principles to the council's business activities and roads 21
business activities under the Local Government Act 1993, 22
chapter 7B;8 and 23
(e) facilitating the implementation of the Local Government Act 24
6 Local Government Act 1993, section 458GM (Appointment of councillors as
shareholder's delegates)
7 Local Government Act 1993, chapter 7A, part 4 (Full cost pricing for significant
business activities), part 5 (Commercialisation of significant business
activities), part 6 (Local government owned corporations)
8 Local Government Act 1993, chapter 7B (Conduct of Competitive Business
activities)
s 13 25 s 14
Local Government Legislation Amendment
1993, chapter 7C9 including-- 1
(i) charging arrangements for, and bases of operation of, 2
relevant business activities providing water and sewerage 3
services; and 4
(ii) providing how the following are to be applied-- 5
(A) consumption as the basis for utility charges for water 6
services; 7
(B) full cost recovery for water and sewerage services; 8
(C) identification and disclosure of cross-subsidies between 9
classes of consumers and community service 10
obligations in the provision of water and sewerage 11
services; 12
(D) disclosure of the classes of consumers who are 13
provided with water or sewerage services at an amount 14
below full cost and the amount. 15
`(3) The council, significant business entities (including corporatised 16
corporations) and trustees of any scheme maintained under section 23 or 17
25E, must comply with the standards.'. 18
PART 3--AMENDMENT OF LOCAL GOVERNMENT 19
ACT 1993 20
amended in pt 3 and schedule 21
Act
Clause 13. This part and the schedule amend the Local Government Act 1993. 22
of s 4 (Definitions) 23
Amendment
Clause 14. Section 4-- 24
9 Local Government Act 1993, chapter 7C (Reform of certain water and sewerage
services)
s 15 26 s 16
Local Government Legislation Amendment
insert-- 1
` "commercial business unit", of a local government, see section 458CK. 2
"LGOC" see section 458DH. 3
"significant business activity", of a local government, means a significant 4
business activity of the local government under chapter 7A. 5
"State-controlled road" means a State-controlled road under the 6
Transport Infrastructure Act 1994.'. 7
of s 7 (Meaning of "material personal interest") 8
Amendment
Clause 15.(1) Section 7(1), after `loss'-- 9
insert-- 10
`, including a benefit or loss as a director of a significant business entity 11
under chapter 7A, part 6'. 12
(2) Section 7(3)(a)(i), after `committee'-- 13
insert-- 14
`or directors of significant business entities that are or are to become 15
LGOCs'. 16
(3) Section 7(3)(c)(ii), after `committees'-- 17
insert-- 18
`or a director of a significant business entity that is or is to become an 19
LGOC or the shareholder's delegate for an LGOC'. 20
of s 8 (Meaning of "open to inspection") 21
Amendment
Clause 16. Section 8(1)-- 22
insert-- 23
`(aa) if a document is open to inspection under chapter 7A, 7B or 24
7C--it must be held in the local government's public office.'. 25
s 17 27 s 19
Local Government Legislation Amendment
of s 9 (Act applies only so far as expressly provided) 1
Amendment
Clause 17.(1) Section 9(2), after `· chapter 7A (National competition reform of 2
significant business activities)'-- 3
insert-- 4
`· chapter 7B (Conduct of competitive business activities) 5
· chapter 7C (Reform of certain water and sewerage services)'. 6
(2) Section 9(2), after `· chapter 11 (Provisions aiding local 7
government)'-- 8
insert-- 9
`· chapter 14 (General) 10
· part 2 (Miscellaneous) 11
· section 793B (Application of Freedom of Information 12
Act and Judicial Review Act)'. 13
(3) Section 9(2), after `· division 3 (Local laws and local law policies)'-- 14
insert-- 15
`· division 3A (Anti-competitive provisions of existing local 16
laws and existing local law policies)'. 17
of s 10 (How local government Acts apply to Brisbane 18
Amendment
City Council) 19
Clause 18. Section 10(a)-- 20
insert-- 21
`(xii)to a local government's annual report includes a reference to 22
an annual report of the Brisbane City Council'; and 23
`(xiii)to a utility charge includes a reference to a utility charge 24
under the City of Brisbane Act 1924.'. 25
of s 137ZZI (Expiry of pt 2A) 26
Replacement
Clause 19. Section 137ZZI-- 27
omit, insert-- 28
s 20 28 s 22
Local Government Legislation Amendment
and savings 1
`Expiry
`137ZZI.(1) This part expires on 1 July 1997. 2
`(2) Despite subsection (1), an adjustment of boundaries of the divisions 3
of the amalgamated Gold Coast area under a regulation under 4
section 137ZZB(2)(d) continues to have effect until the boundaries are 5
otherwise changed under this Act.'. 6
of new s 173A 7
Insertion
Clause 20. After section 173-- 8
insert-- 9
ceases to be councillor on becoming director of significant 10
`Councillor
business entity 11
`173A. On a councillor becoming a director of a corporatised 12
corporation, the councillor ceases to be a councillor.'. 13
of s 386 (Delegation by local government) 14
Amendment
Clause 21.(1) Section 386-- 15
insert-- 16
`(4A) All appointments by a local government of shareholder's delegates 17
for its LGOCs under section 458GM must be recorded in the register.'. 18
(2) Section 386-- 19
insert-- 20
`(7) Subsections (1) to (4) do not apply to powers of a local government 21
as a shareholder of an LGOC, under chapter 7A, part 6. 22
`(8) Subsections (4) to (6) apply to delegations by shareholder's 23
delegates under section 458KF as if the shareholder's delegates were the 24
local government.'. 25
of s 416 (Issue of standards) 26
Amendment
Clause 22. Section 416(1)-- 27
s 22 29 s 22
Local Government Legislation Amendment
insert-- 1
`(d) requirements for full cost pricing and their application to 2
significant business activities of local governments under 3
chapter 7A, part 4;10 and 4
(e) commercialisation and its application to local governments' 5
commercial business units under chapter 7A, part 5; and 6
(f) corporatisation and its application to corporatised corporations of 7
local governments under chapter 7A, part 6;11 and 8
(g) a code of competitive conduct for application of competitive 9
neutrality principles to local governments' business activities and 10
roads business activities under chapter 7B; and 11
(h) facilitating the implementation of chapter 7C12 including-- 12
(i) charging arrangements for, and bases of operation of, 13
relevant business activities providing water and sewerage 14
services; and 15
(ii) providing how the following are to be applied-- 16
(A) consumption as the basis for utility charges for water 17
services; 18
(B) full cost recovery for water and sewerage services; 19
(C) identification and disclosure of cross-subsidies between 20
classes of consumers and community service 21
obligations in the provision of water and sewerage 22
services; 23
(D) disclosure of the classes of consumers who are 24
provided with water or sewerage services at an amount 25
below full cost and the amount.'. 26
10 Local Government Act 1993, chapter 7A, part 4 (Full cost pricing for significant
business activities)
11 Local Government Act 1993, chapter 7A, part 6 (Local government owned
corporations)
12 Local Government Act 1993, chapter 7C (Reform of certain water and sewerage
services).
s 23 30 s 26
Local Government Legislation Amendment
of s 417 (Standards must be complied with) 1
Amendment
Clause 23. Section 417, after `scheme'-- 2
insert-- 3
`and significant business entity (including a corporatised corporation)'. 4
of s 434 (Content of operating fund budgets) 5
Amendment
Clause 24. Section 434-- 6
insert-- 7
`(4) For subsection (1)(a), the following are included as significant 8
activities of the local government-- 9
(a) the local government's significant business activities carried on 10
on a full cost pricing basis; 11
(b) the activities of the local government's commercial business 12
units; 13
(c) the local government's significant business activities to which 14
chapter 7C applies.'. 15
of s 450 (Content of report about other issues of public 16
Amendment
interest) 17
Clause 25. Section 450-- 18
insert-- 19
`(l) names of shareholder's delegates of the local government for its 20
LGOCs for the year under section 458GM.'. 21
of ss 458B-458M 22
Renumbering
Clause 26. Sections 458B, 458C, 458D, 458E, 458F, 458G, 458H, 458I, 458J, 23
458K, 458L and 458M-- 24
renumber as sections 458AA, 458AB, 458B, 458BA, 458BB, 458BC, 25
458BD, 458BE, 458BF, 458BH, 458BI and 458BJ respectively. 26
s 27 31 s 27
Local Government Legislation Amendment
of s 458AB (Definitions for ch 7A) 1
Amendment
Clause 27.(1) Section 458AB (as renumbered), definitions "Competition 2
Policies Agreement" and "significant business activity"-- 3
omit. 4
(2) Section 458AB (as renumbered)-- 5
insert-- 6
` "business activity", of a local government, means an activity of the local 7
government trading in goods and services to clients, including, for 8
example, providing cleansing services, water and sewerage services, 9
off-street parking and cultural, sporting and recreational facilities, but 10
does not include the construction or maintenance of roads or State- 11
controlled roads or library services. 12
"Competition Principles Agreement" means the Competition Principles 13
Agreement made on 11 April 1995 between the Commonwealth, the 14
State of New South Wales, the State of Victoria, the State of 15
Queensland, the State of Western Australia, the State of South 16
Australia, the State of Tasmania, the Australian Capital Territory and 17
the Northern Territory, as in force for the time being. 18
"government tax" means tax imposed under a Commonwealth Act, or a 19
State Act, including this Act. 20
"new type 1 business activity" means a business activity of a local 21
government identified by it as a new type 1 business activity under 22
section 458AD. 23
"new type 1 or 2 business activity" means a new type 1 business activity 24
or a new type 2 business activity. 25
"new type 2 business activity" means a business activity of a local 26
government identified by it as a new type 2 business activity under 27
section 458AD. 28
"significant business activity", of a local government, means-- 29
(a) a type 1 or 2 business activity; or 30
(b) a new type 1 or 2 business activity; 31
and includes a part of the activity. 32
s 28 32 s 28
Local Government Legislation Amendment
"significant business entity" means an entity established by resolution of 1
a local government under part 6, and includes a significant business 2
entity after it becomes a corporatised corporation. 3
"tax" includes any charge, duty, fee, levy and rate. 4
"threshold amount", for identifying a new type 1 or 2 business activity, 5
see section 458AC. 6
"type 1 or 2 business activity" means a type 1 business activity or a type 7
2 business activity.'. 8
of new ch 7A, pt 2A 9
Insertion
Clause 28. After section 458AB (as renumbered)-- 10
insert-- 11
ART 2A--IDENTIFICATION OF NEW TYPE 1 AND 12
`P
2 BUSINESS ACTIVITIES 13
to decide threshold amounts for identifying new type 1 or 2 14
`Minister
business activities 15
`458AC.(1) Before the end of each financial year, the Minister must 16
decide for the financial year amounts (the "threshold amounts") for 17
identifying a business activity that should be a new type 1 or 2 business 18
activity. 19
`(2) The Minister may decide threshold amounts only after consultation 20
with the Local Government Association. 21
`(3) For an activity that should be a new type 1 business activity, a 22
threshold amount is an amount of expenditure the Minister considers is the 23
equivalent (at 30 June in the financial year in which the amount is decided 24
after adjustment for actual or estimated cost of living movements and 25
changes to applicable accounting systems) of current expenditure of-- 26
(a) for water and sewerage combined activities--$25 million at 27
30 June 1993; or 28
(b) for other activities--$15 million at 30 June 1993. 29
`(4) For an activity that should be a new type 2 business activity, a 30
s 28 33 s 28
Local Government Legislation Amendment
threshold amount is an amount of expenditure the Minister considers is the 1
equivalent (at 30 June in the financial year in which the amount is decided 2
after adjustment for actual or estimated cost of living movements and 3
changes to applicable accounting systems) of current expenditure of-- 4
(a) for water and sewerage combined activities--$7.5 million at 5
30 June 1993; or 6
(b) for other activities--$5 million at 30 June 1993. 7
`(5) The Minister must in the financial year in which threshold amounts 8
are decided publish the threshold amounts by gazette notice. 9
review of business activities 10
`Annual
`458AD.(1) As soon as practicable after its budget meeting for a 11
financial year (the "relevant year"), a local government must, for the 12
financial year, identify its business activities that-- 13
(a) are new type 1 or 2 business activities; and 14
(b) have not previously been identified as being significant business 15
activities. 16
`(2) For subsection (1), a business activity is a new type 1 or 2 business 17
activity of a local government, if, based on financial information presented 18
to the local government's budget meeting for the relevant year, the activity 19
had expenditure for the preceding financial year greater than the threshold 20
amount decided for the activity in that preceding financial year. 21
`(3) A notice under section 458AC(5) may state matters in financial 22
information presented to the budget meeting for a financial year, the local 23
government must, or must not, consider in deciding if an activity should be 24
a new type 1 or 2 business activity for the following financial year. 25
to Minister of new type 1 or 2 business activities 26
`Notice
`458AE. As soon as practicable after deciding a business activity is a 27
new type 1 or 2 business activity, a local government must give written 28
notice to the Minister.'. 29
s 29 34 s 31
Local Government Legislation Amendment
of ch 7A, pt 3, heading 1
Amendment
Clause 29. Chapter 7A, part 3, heading, after `2'-- 2
insert-- 3
`and new types 1 and 2'. 4
of s 458B (Matters to be addressed by public benefit 5
Amendment
assessment for type 1 business activity) 6
Clause 30.(1) Section 458B (as renumbered), heading, after `1'-- 7
insert-- 8
`or new type 1'. 9
(2) Section 458B (as renumbered), after `1'-- 10
insert-- 11
`or new type 1'. 12
(3) Section 458B (as renumbered)-- 13
insert-- 14
`(2) An assessment may, and it is declared always could, consider-- 15
(a) different reforms for separate parts of the activity; and 16
(b) sequential reforms for the whole or part of the activity. 17
18
Example to subsection (2)--
19
An assessment may consider whether the whole or part of an activity should be
20
reformed and, in recommending reform of part of the activity, the public benefit
21
assessment report could recommend that for the part--
22
(a) full cost pricing be implemented by 1 July 1999; and
23
(b) commercialisation be implemented by 1 July 2000; and
24
(c) the activity be corporatised by 1 July 2002.'.
of s 458BA (Matters to be addressed by public benefit 25
Amendment
assessment for type 2 business activity) 26
Clause 31.(1) Section 458BA (as renumbered), heading, after `2'-- 27
s 32 35 s 33
Local Government Legislation Amendment
insert-- 1
`or new type 2'. 2
(2) Section 458BA (as renumbered), after `2'-- 3
insert-- 4
`or new type 2'. 5
(3) Section 458BA (as renumbered)-- 6
insert-- 7
`(2) An assessment may, and it is declared always could, consider-- 8
(a) different reforms for separate parts of the activity; and 9
(b) sequential reforms for the whole or part of the activity. 10
11
Example to subsection (2)--
12
An assessment may consider whether the whole or part of an activity should be
13
reformed and, in recommending reform of part of the activity, the public benefit
14
assessment report could recommend that for the part--
15
(a) full cost pricing be implemented by 1 July 1999; and
16
(b) commercialisation be implemented by 1 July 2000; and
17
(c) the activity be corporatised by 1 July 2002.'.
of s 458BB (What is corporatisation) 18
Amendment
Clause 32. Section 458BB (as renumbered)-- 19
insert-- 20
`(4) Part 6 applies to the implementation of corporatisation for a 21
significant business activity of a local government.'. 22
of s 458BC (What is commercialisation) 23
Amendment
Clause 33. Section 458BC (as renumbered)-- 24
insert-- 25
`(3) Part 5 applies to the commercialisation of a significant business 26
activity of a local government.'. 27
s 34 36 s 36
Local Government Legislation Amendment
of s 458BD (What is full cost pricing) 1
Amendment
Clause 34. Section 458BD (as renumbered)-- 2
insert-- 3
`(2) Part 4 applies to the application of full cost pricing for a significant 4
business activity of a local government.'. 5
of s 458BE (Matters to be addressed in public benefit 6
Amendment
assessment reports) 7
Clause 35. Section 458BE (as renumbered)-- 8
insert-- 9
`(2) A report may, and it is declared always could, recommend-- 10
(a) different reforms for separate parts of the activity; and 11
(b) sequential reforms for the whole or part of the activity. 12
13
Example to subsection (2)--
14
An assessment may consider whether the whole or part of an activity should be
15
reformed and, in recommending reform of part of the activity, the public benefit
16
assessment report could recommend that for the part--
17
(a) full cost pricing be implemented by 1 July 1999; and
18
(b) commercialisation be implemented by 1 July 2000; and
19
(c) the activity be corporatised by 1 July 2002.'.
of s 458BF (Public benefit assessments to be 20
Amendment
undertaken) 21
Clause 36. Section 458BF (as renumbered)-- 22
insert-- 23
`(2) A local government may, by resolution, decide a public benefit 24
assessment is to be carried out and a public benefit assessment report be 25
prepared for any of its activities that are not significant business activities. 26
`(3) If a local government acts under subsection (2), this chapter, (other 27
s 37 37 s 38
Local Government Legislation Amendment
than sections 458BG, 458BI(1) and 458BO(3)13), applies, with all 1
necessary changes, to the activity as if it were a type 2 business activity.'. 2
of new s 458BG 3
Insertion
Clause 37. After section 458BF (as renumbered)-- 4
insert-- 5
public benefit assessment if reforms not implemented within 3 6
`Fresh
years 7
`458BG.(1) This section applies if-- 8
(a) a public benefit assessment report on a significant business 9
activity of a local government recommends reforms under this 10
part; and 11
(b) the local government resolves not to implement any reforms. 12
`(2) The local government must ensure a fresh public benefit assessment 13
is carried out and a fresh public benefit assessment report prepared for the 14
activity within 3 years after the end of the financial year in which the report 15
was first presented to the local government.'. 16
of s 458BI (Timing for assessments and reports) 17
Amendment
Clause 38. Section 458BI(1) (as renumbered)-- 18
omit, insert-- 19
`458BI.(1) The public benefit assessment report must be completed-- 20
(a) for a type 1 or 2 business activity-- 21
(i) before 30 June 1997; or 22
(ii) a day (not later than 30 September 1997) approved by the 23
Minister; or 24
(b) for a new type 1 business activity-- 25
13 Sections 458BG (Fresh public benefit assessment if reforms not implemented
within 3 years), 458BI (Timing for assessments and reports), 458BO (Timetable
for implementation of reforms)
s 39 38 s 39
Local Government Legislation Amendment
(i) before the end of the financial year for which the activity is 1
first identified by the local government as a new type 1 2
business activity; or 3
(ii) a day (not later than 3 months after the end of the financial 4
year) approved by the Minister; or 5
(c) for a new type 2 business activity-- 6
(i) before the end of the financial year for which the activity is 7
first identified by the local government as a new type 2 8
business activity; or 9
(ii) a day (not later than 3 months after the end of the financial 10
year) approved by the Minister.'. 11
of new ch 7A, pt 3, div 4 and pts 4 to 6, and chs 7B and 7C 12
Insertion
Clause 39. After section 458BJ (as renumbered)-- 13
insert-- 14
4--Action to be taken on public benefit assessment reports 15
`Division
of division 16
`Object
`458BK. The object of this division is to require local governments to 17
consider public benefit assessment reports and to decide whether or not to 18
implement reforms of their significant business activities and, if reforms are 19
to be implemented, timetables for implementation of the reforms. 20
government to give public notice of public benefit assessment 21
`Local
report 22
`458BL.(1) A local government must give public notice of the public 23
benefit assessment report for each of its significant business activities. 24
`(2) The notice must be given by-- 25
(a) publishing the notice, as soon as practicable after the report has 26
been presented to a meeting of the local government under 27
section 458BI(2), once in a newspaper circulating generally in the 28
local government's area; and 29
s 39 39 s 39
Local Government Legislation Amendment
(b) putting a copy of the notice on display in a conspicuous place in 1
the local government's public office on the day on which the 2
notice is published under paragraph (a); and 3
(c) keeping the copy of the notice on display until the local 4
government resolves under section 458BN whether any of the 5
reforms considered under section 458B or 458BA14 should be 6
implemented for the significant business activity. 7
`(3) The notice must state the following-- 8
(a) the name of the local government; 9
(b) the report has been presented to the local government; 10
(c) a summary of the report's recommendations; 11
(d) the day, under section 458BN, on or before which the local 12
government is required to decide whether to implement any of the 13
reforms mentioned in the report; 14
(e) the report is open to inspection. 15
access to public benefit assessment reports 16
`Public
`458BM. From the day the public benefit assessment report for a 17
significant business activity is presented to a meeting of a local government 18
until the local government decides under section 458BN whether to 19
implement any of the reforms-- 20
(a) a copy of the report must be open to inspection; and 21
(b) copies of the report must be available for purchase at the local 22
government's public office at the price stated in the notice about 23
the report. 24
government to resolve whether to implement reforms 25
`Local
`458BN.(1) As soon as practicable, and not later than 3 months after a 26
public benefit assessment report for a significant business activity has been 27
14 Section 458B (Matters to be addressed by public benefit assessment for type 1 or
new type 1 business activity) Section 458BA (Matters to be addressed by public
benefit assessment for type 2 or new type 2 business activity)
s 39 40 s 39
Local Government Legislation Amendment
first presented to a meeting of a local government, the local government 1
must resolve whether any of the reforms considered under section 458B or 2
458BA15 should be implemented for the whole or part of the activity. 3
`(2) A resolution not to implement a reform recommended in the report 4
must include a statement of the reasons for not implementing the reform. 5
for implementation of reforms 6
`Timetable
`458BO.(1) This section applies if a local government resolves under 7
section 458BN to implement a reform of a significant business activity. 8
`(2) The local government must also, by the resolution, decide a 9
timetable for implementation of the reform under subsection (3). 10
`(3) The reform of the activity must be implemented on or before-- 11
(a) for a type 1 or 2 business activity--1 July 1998; or 12
(b) for a new type 1 or 2 business activity--the start of the second 13
financial year after the financial year for which the activity was 14
identified as being a new type 1 or 2 business activity. 15
`(4) For a particular significant business activity, the Minister may extend 16
the time for its implementation subject to the terms the Minister considers 17
appropriate. 18
`(5) If the Minister extends the time for implementation, the local 19
government may, by resolution, amend the timetable for implementation in 20
accordance with the extension. 21
`(6) Subsection (7) applies if, under section 458BN, a local government 22
resolves to implement a series of reforms for the whole or part of a 23
significant business activity. 24
`(7) Subsection (3) applies only to the first of the series of reforms for 25
the significant business activity but the resolution of the local government 26
must include a timetable for implementation of the remaining reforms. 27
15 Section 458B (Matters to be addressed by public benefit assessment for type 1 or
new type 1 business activity) or 458BA (Matters to be addressed by public
benefit assessment for type 2 or new type 2 business activity)
s 39 41 s 39
Local Government Legislation Amendment
to Minister of resolution 1
`Notice
`458BP. As soon as practicable after making a resolution to implement, 2
or not to implement, a reform considered under section 458B or 458BA, a 3
local government must give to the Minister-- 4
(a) a copy of the public benefit assessment report; and 5
(b) a copy of the resolution. 6
not implemented, may later be implemented 7
`Reforms
`458BQ.(1) Although a local government resolves not to implement a 8
reform recommended in a public benefit assessment report for a significant 9
business activity, the local government may, at a later time, resolve to 10
implement the reform. 11
`(2) Sections 458BO (other than subsection (3)) and 458BP apply, with 12
all necessary changes, to a local government acting under this section. 13
`PART 4--FULL COST PRICING FOR SIGNIFICANT 14
BUSINESS ACTIVITIES 15
of pt 4 16
`Application
`458C. This part applies to a significant business activity of a local 17
government if the local government has resolved under section 458BN or 18
458BQ16 to implement full cost pricing for the activity. 19
of "full cost pricing" 20
`Meaning
`458CA.(1) "Full cost pricing", for a significant business activity of a 21
local government, is charging for goods or services taking into account the 22
full cost of providing the goods or services, including estimates of amounts 23
equivalent to-- 24
16 Section 458BN (Local government to resolve whether to implement reforms) or
458BQ (Reforms not implemented, may be later implemented)
s 39 42 s 39
Local Government Legislation Amendment
(a) government taxes that are not otherwise payable to the 1
Commonwealth, State or local government; and 2
(b) debt guarantee fees for State guarantees. 3
`(2) Full cost pricing includes-- 4
(a) where possible and appropriate, the removal of advantages and 5
disadvantages that would not apply to the significant business 6
activity if it were carried on by a private sector business; and 7
(b) if removal of the advantages or disadvantages does not happen, 8
taking them into account in charging for goods or services. 9
`(3) Full cost pricing also includes the requirement to comply with 10
Commonwealth, State and local government requirements about protecting 11
the environment and planning and approval processes that would apply only 12
if the activity were carried on by a private sector business. 13
by State 14
`Guarantees
`458CB. If the State guarantees repayment of a debt of a local 15
government for a significant business activity for which full cost pricing is 16
implemented, the local government must in carrying on the activity take 17
account of amounts equivalent to the cost of funds advantage the local 18
government obtains over commercial rates of interest because of the 19
guarantee. 20
government to implement full cost pricing for significant 21
`Local
business activities 22
`458CC. The local government must implement full cost pricing for 23
each of its significant business activities in accordance with the timetable for 24
its implementation.17 25
17 Section 458BO (Timetable for implementation of reforms) requires a local
government to decide a timetable for implementation of reforms
s 39 43 s 39
Local Government Legislation Amendment
ART 5--COMMERCIALISATION OF 1
`P
SIGNIFICANT BUSINESS ACTIVITIES 2
1--Preliminary 3
`Division
of pt 5 4
`Application
`458CD. This part applies to a significant business activity of a local 5
government if the local government has resolved under section 458BN or 6
458BQ18 to implement commercialisation of the activity. 7
`Division 2--Background and objectives of part 8
of commercialisation 9
`Objectives
`458CE. The objectives of commercialisation of significant business 10
activities of a local government are to improve overall economic 11
performance and the local government's ability to carry out its 12
responsibilities for the good rule and government of its area by-- 13
(a) establishing efficient and effective commercial business units; and 14
(b) establishing a framework for operation and accountability of the 15
units. 16
objectives of commercialisation are to be achieved--key 17
`How
principles and their elements 18
`458CF. The objectives of commercialisation of significant business 19
activities are to be achieved through application of the key principles of 20
commercialisation and their elements. 21
18 Section 458BN (Local government to resolve whether to implement reforms) or
458BQ (Reforms not implemented, may be later implemented)
s 39 44 s 39
Local Government Legislation Amendment
objectives of commercial business units under commercialisation 1
`Key
`458CG.(1) Under commercialisation, the key objectives of a local 2
government's commercial business unit are to be commercially successful 3
in carrying on its activities and efficient and effective in the provision of 4
goods and delivery of its services, including things done as community 5
service obligations. 6
`(2) The commercial success, efficiency and effectiveness of a 7
commercial business unit are to be measured against its financial and 8
non-financial performance targets. 9
`Division 3--Interpretation 10
of "commercialisation" 11
`Meaning
`458CH.(1) "Commercialisation" of a significant business activity of a 12
local government involves-- 13
(a) the activity being carried on by a commercial business unit of the 14
local government that is not a legal entity separate from the local 15
government; and 16
(b) the unit providing goods or services on a commercial and full 17
cost pricing basis; and 18
(c) subsidies to do anything, as community service obligations, that 19
would not otherwise be in the commercial interests of the unit to 20
do. 21
`(2) "Commercialisation" includes-- 22
(a) retention by the local government of-- 23
(i) amounts equivalent to government taxes that are not 24
otherwise payable to the Commonwealth, State or local 25
government; and 26
(ii) amounts equivalent to debt guarantee fees for State 27
guarantees; and 28
(b) compliance with Commonwealth, State and local government 29
requirements that apply only if the activity were carried on by a 30
private sector business, including, for example, requirements 31
s 39 45 s 39
Local Government Legislation Amendment
relating to the protection of the environment and planning and 1
approval processes. 2
of "key principles of commercialisation" 3
`Meaning
`458CI.(1) The "key principles of commercialisation" are-- 4
(a) principle 1--clarity of objectives; and 5
(b) principle 2--management autonomy and authority; and 6
(c) principle 3--accountability for performance; and 7
(d) principle 4--competitive neutrality. 8
(2) The elements of principle 1 are that-- 9
(a) the commercial business unit will have clear, non-conflicting 10
objectives; and 11
(b) specific financial and non-financial performance targets will be set 12
for the commercial activities of the commercial business unit; and 13
(c) any activities of a local government policy formulation or 14
regulatory nature will, wherever possible, be kept separate from 15
its commercial business unit; and 16
(d) any community service obligations of the commercial business 17
unit will be-- 18
(i) clearly identified in the unit's annual performance plan; and 19
(ii) separately costed; and 20
(e) the commercial business unit will be appropriately funded for its 21
community service obligations and any funding will be made 22
apparent; and 23
(f) the commercial business unit will be set performance targets for 24
its community service obligations. 25
(3) The elements of principle 2 are that-- 26
(a) the commercial business unit will be required to use its best 27
endeavours to ensure it meets its performance targets; and 28
(b) the commercial business unit will be given the autonomy in its 29
day to day operations subject to overarching control mechanisms 30
s 39 46 s 39
Local Government Legislation Amendment
under the commercialisation framework; and 1
(c) local government directions for the commercial business unit to 2
achieve non-commercial objectives will be exercised in an open 3
way; and 4
(d) in its day to day operations the commercial business unit will be 5
at arms length to its local government. 6
(4) The elements of principle 3 are that-- 7
(a) performance of the commercial business unit will be monitored 8
by the local government against performance targets specified in 9
its annual performance plan; and 10
(b) commercial business units will generally be subject to the basic 11
management framework of the local government and will comply 12
with the requirements of laws applying to local governments. 13
(5) The elements of principle 4 are that-- 14
(a) the efficiency of overall resource use is promoted by ensuring 15
markets are not unnecessarily distorted; and 16
(b) wherever possible and appropriate, advantages and disadvantages 17
accruing to a commercial business unit because it is part of the 18
local government should be removed. 19
for pt 5 20
`Definitions
`458CJ. In this part-- 21
"commercialisation" see s 458CH. 22
"community service obligations", of a commercial business unit of a local 23
government, means the obligations to do anything the local 24
government is satisfied-- 25
(a) are not in the unit's commercial interests to perform; and 26
(b) arise because of a direction by the local government; and 27
(c) do not arise because of the application of the following key 28
principles of commercialisation and their elements-- 29
(i) principle 3--accountability for performance; 30
s 39 47 s 39
Local Government Legislation Amendment
(ii) principle 4--competitive neutrality. 1
"full cost pricing", for a significant business activity of a local 2
government, is charging for goods or services taking into account the 3
full cost of providing the goods or services, including amounts 4
equivalent to-- 5
(a) government taxes that are not otherwise payable to the 6
Commonwealth, State or local government; and 7
(b) debt guarantee fees for State guarantees. 8
"key principles of commercialisation" see section 458CI. 9
4--Establishment of commercial business unit 10
`Division
government to establish commercial business unit 11
`Local
`458CK. A local government must establish a unit of the local 12
government (a "commercial business unit") for carrying on of 1 or more 13
of the local government's significant business activities under the resolution 14
to implement commercialisation of the activity.19 15
5--Operations of commercial business unit 16
`Division
requirements for corporate plan 17
`Additional
`458CL. A local government's corporate plan under chapter 7, part 2, 18
must include, for each of its commercial business units, an outline of-- 19
(a) its objectives; and 20
(b) the nature and scope of the activities proposed to be carried out by 21
the unit. 22
19 Section 458BN (Local government to resolve whether to implement reforms)
requires a resolution.
s 39 48 s 39
Local Government Legislation Amendment
plan for commercial business units 1
`Performance
`458CM.(1) There must be an annual performance plan for each 2
commercial business unit. 3
`(2) A local government's operational plan under chapter 7, part 2, must 4
include the annual performance plan for each of its commercial business 5
units. 6
`(3) A performance plan may be amended at any time before the end of 7
the financial year for which it is prepared. 8
`Division 6--Annual statement of operations on commercial business 9
unit 10
statement of operations on commercial business unit 11
`Annual
`458CN.(1) A local government must ensure an annual statement on the 12
operations of each commercial business unit for the preceding financial year 13
is given to the local government. 14
`(2) The statement must contain-- 15
(a) information to enable an informed assessment to be made of the 16
unit's operations, including a comparison of the unit's 17
performance with its annual performance plan; and 18
(b) particulars of any amendments made to its annual performance 19
plan in the financial year; and 20
(c) particulars of any directions (including directions about 21
community service obligations to be carried out by the unit) to the 22
unit for the financial year; and 23
(d) particulars of the impact that any changes to its annual 24
performance plan may have had on the unit's financial position, 25
operating surpluses and deficits and prospects. 26
`(3) The statement must be included in the local government's annual 27
report. 28
s 39 49 s 39
Local Government Legislation Amendment
and State tax equivalents 1
`Commonwealth
`458CO.(1) The Treasurer may issue a manual (the "tax equivalents 2
manual") about deciding the amounts ("tax equivalents") that must be 3
taken into account by a commercial business unit in applying full cost 4
pricing to its operations as the value of benefits derived by the unit if there is 5
no liability to pay a government tax that would be payable by the unit if it 6
were not a part of a local government. 7
`(2) Without limiting subsection (1), the tax equivalents manual may 8
provide for-- 9
(a) rulings by the tax assessor appointed under subsection (3) on 10
issues about tax equivalents, including the application of rulings 11
under a Commonwealth Act about Commonwealth tax; and 12
(b) lodging of returns and giving of information; and 13
(c) assessing returns; and 14
(d) functions and powers of the tax assessor; and 15
(e) objections and appeals against assessments and rulings. 16
`(3) The Treasurer may appoint a person to be the tax assessor under the 17
tax equivalents manual. 18
`(4) A commercial business unit must, as required under the tax 19
equivalents manual, account for tax equivalents. 20
`(5) The Treasurer must table a copy of the tax equivalents manual, and 21
each amendment of the manual, in the Legislative Assembly within 22
14 sitting days after the manual is issued or the amendment made. 23
by State 24
`Guarantees
`458CP. If the State guarantees repayment of a debt of a local 25
government for a significant business activity carried on by a commercial 26
business unit of the local government, the local government must in the 27
unit's operations take account of amounts equivalent to the cost of funds 28
advantage the unit obtains over commercial rates of interest because of the 29
guarantee. 30
s 39 50 s 39
Local Government Legislation Amendment
`PART 6--LOCAL GOVERNMENT OWNED 1
CORPORATIONS 2
1--Preliminary 3
`Division
`Subdivision 1--Application of part 4
of pt 6 5
`Application
`458D. This part applies to a significant business activity of a local 6
government if the local government resolves to implement corporatisation 7
in relation to the activity.20 8
2--Outline of part and its background and objectives 9
`Subdivision
this part provides 10
`What
`458DA. This part provides for the processes necessary to allow for-- 11
(a) local governments to propose the acquisition of a part of a local 12
government, or parts of local governments, carrying on a 13
significant business activity by corporatised corporations; and 14
(b) the nomination of parts of local governments carrying on 15
significant business activities as candidate LGOCs or candidate 16
subsidiaries; and 17
(c) the preparation and approval of corporatisation charters for 18
candidate LGOCs; and 19
(d) the establishment of significant business entities as separate legal 20
entities; and 21
(e) significant business entities to become corporatised corporations 22
20 See sections 458BN (Local government to resolve whether to implement
reforms), 458BQ (If partial reforms implemented, further reforms may be
implemented), 458FA (Local government proposes corporatisation of significant
business activity).
s 39 51 s 39
Local Government Legislation Amendment
and to acquire the business of candidates; and 1
(f) the operation of corporatised corporations. 2
of corporatisation 3
`Objectives
`458DB. The objectives of corporatisation are to improve overall 4
economic performance, and the ability of local governments to carry out 5
their responsibilities for the good rule and government of their areas, by-- 6
(a) establishing efficient and effective corporatised corporations; and 7
(b) establishing a framework for accountability of corporatised 8
corporations. 9
objectives of corporatisation are to be achieved--key principles 10
`How
and their elements 11
`458DC. The objectives of corporatisation are to be achieved through 12
application of the key principles of corporatisation and their elements. 13
objectives of corporatised corporation under corporatisation 14
`Key
`458DD.(1) Under corporatisation, the key objectives of a corporatised 15
corporation are to be commercially successful in the carrying on of its 16
activities and efficient and effective in the provision of goods and delivery 17
of its services, including services provided as community service 18
obligations. 19
`(2) The commercial success, efficiency and effectiveness of a 20
corporatised corporation are to be measured against its financial and 21
non-financial performance targets. 22
3--Interpretation 23
`Subdivision
of "corporatisation" 24
`Meaning
`458DE. "Corporatisation" is a reform process for certain significant 25
business activities of local governments that-- 26
s 39 52 s 39
Local Government Legislation Amendment
(a) changes the conditions and the structure under which the business 1
activities are carried on so they are acquired and carried on by 2
separate legal entities (corporatised corporations) and, as far as 3
practicable, on a commercial basis and in a competitive 4
environment; and 5
(b) provides for local government ownership (whether directly or 6
through ownership of an LGOC) of the corporatised corporations 7
operating the business activities; and 8
(c) allows local governments to provide strategic direction to the 9
corporatised corporations by setting financial and non-financial 10
performance targets and community service obligations. 11
of "key principles of corporatisation" 12
`Meaning
`458DF.(1) The "key principles of corporatisation" are-- 13
(a) principle 1--clarity of objectives; and 14
(b) principle 2--management autonomy and authority; and 15
(c) principle 3--strict accountability for performance; and 16
(d) principle 4--competitive neutrality. 17
(2) The elements of principle 1 are that-- 18
(a) each corporatised corporation will have clear, non-conflicting 19
objectives; and 20
(b) each corporatised corporation will be set specific financial and 21
non-financial performance targets for its commercial activities; 22
and 23
(c) any activities of a local governmental policy formulation or 24
regulatory nature will, wherever possible, be kept separate from 25
its corporatised corporation; and 26
(d) any community service obligations of the corporatised 27
corporation will be-- 28
(i) clearly identified in the corporation's statement of corporate 29
intent; and 30
(ii) separately costed; and 31
s 39 53 s 39
Local Government Legislation Amendment
(e) the corporatised corporation will be appropriately compensated 1
for its community service obligations and any funding will be 2
made apparent; and 3
(f) the corporatised corporation will be set performance targets for its 4
community service obligations. 5
(3) The elements of principle 2 are that-- 6
(a) each corporatised corporation will have a board of directors 7
appointed on merit; and 8
(b) the board will be required to use its best endeavours to ensure that 9
the corporation meets its performance targets; and 10
(c) the board will be given the autonomy and authority to make 11
commercial decisions within areas of responsibility defined by 12
the corporatisation framework; and 13
(d) the local government's former power to make decisions on the 14
operation of a significant business activity will be replaced with 15
procedures for strategic monitoring of corporatised corporations; 16
and 17
(e) the role of the shareholder in relation to the corporatised 18
corporation will be clearly defined; and 19
(f) local government reserve powers will be required to be exercised 20
in an open way. 21
(4) The elements of principle 3 are that-- 22
(a) the board of the corporatised corporation will be accountable to 23
the shareholder for the corporation's performance; and 24
(b) the corporation's statement of corporate intent will form the basis 25
for accountability; and 26
(c) performance will be monitored by the shareholder against 27
performance targets stated in the statement of corporate intent; 28
and 29
(d) shareholder monitoring of the corporation is intended to 30
compensate for the absence of the wide range of monitoring to 31
which listed corporations are subject by, for example, the 32
sharemarket and Commonwealth regulatory agencies. 33
s 39 54 s 39
Local Government Legislation Amendment
(5) The elements of principle 4 are that-- 1
(a) the efficiency of overall resource use is promoted by ensuring 2
markets are not unnecessarily distorted; and 3
(b) to ensure, wherever possible, the removal of advantages and 4
disadvantages accruing to the corporatised corporation as a result 5
of local government ownership; and 6
(c) if a corporation has monopoly or near monopoly power-- 7
(i) if a local government decides it is appropriate to increase 8
competition, there may be reform of the business activity; 9
and 10
(ii) special monitoring may be necessary to prevent abuse of this 11
power. 12
of "statement of corporate intent" 13
`Meaning
`458DG.(1) The "statement of corporate intent" of a corporatised 14
corporation is a document created for the corporation under division 3, 15
subdivision 9.21 16
`(2) It is intended that the statement of corporate intent should represent 17
an agreement between the board of the corporation and its shareholder but 18
the statement is not a contract for carrying out of work or for supply of 19
goods or services. 20
for pt 6 21
`Definitions
`458DH. In this part-- 22
"board", of a corporatised corporation, means the corporation's board of 23
directors. 24
"borrow" includes-- 25
(a) raise money or credit; and 26
(b) obtain financial accommodation; and 27
21 Division 3 (Local government owned corporatisation and subsidiaries),
subdivision 9 (Statement of corporate intent--general)
s 39 55 s 39
Local Government Legislation Amendment
(c) borrow in a foreign currency. 1
"candidate" means a candidate LGOC or a candidate subsidiary. 2
"candidate LGOC" means a part of a local government carrying on a 3
significant business activity nominated by the local government under 4
section 458EA22 for its business to become the business of an LGOC. 5
"candidate subsidiary" means a part of a local government carrying on a 6
significant business activity nominated by the local government under 7
section 458EA for its business to become the business of a subsidiary 8
of an LGOC. 9
"charter transitional part" see section 458EI. 10
"Commonwealth tax" means tax imposed under a Commonwealth Act. 11
"community service obligations" see section 458I. 12
"corporatisation" see section 458DE. 13
"corporatisation charter" means-- 14
(a) for a candidate LGOC-- 15
(i) the draft corporatisation charter approved by the candidate 16
LGOC's local government as its corporatisation charter; or 17
(ii) if the local government approves an amendment of the 18
corporatisation charter--the corporatisation charter as 19
amended; or 20
(b) for an LGOC--the corporatisation charter for the LGOC when it 21
was a candidate LGOC as amended from time to time and, on 22
expiry of the charter transitional part, the remainder of the charter. 23
"corporatised corporation" means an LGOC or a subsidiary of an 24
LGOC. 25
"financial accommodation", for a corporatised corporation, includes a 26
financial benefit and assistance to obtain a financial benefit, arising 27
from or because of-- 28
(a) a loan; or 29
(b) issuing, endorsing or other dealing in promissory notes; or 30
22 Section 458EA (Nomination of candidate LGOC or LGOC's subsidiary)
s 39 56 s 39
Local Government Legislation Amendment
(c) drawing, accepting, endorsing or other dealing in bills of 1
exchange; or 2
(d) issuing, purchasing or other dealing in securities; or 3
(e) granting or taking a lease of any property for financing purposes; 4
or 5
(f) another arrangement prescribed under a regulation. 6
"instrument" means an instrument of any kind (whether express or 7
implied and whether made or given orally or in writing), and 8
includes-- 9
(a) a contract, deed, agreement, arrangement, understanding or 10
undertaking; and 11
(b) a mandate, instruction, notice, authority or order; and 12
(c) a lease, licence, transfer, conveyance or other assurance; and 13
(d) a guarantee, bond, power of attorney, bill of lading, negotiable 14
instrument or order for the payment of money; and 15
(e) a mortgage, charge, lien or security. 16
"key principles of corporatisation" see section 458DF. 17
"lease" includes-- 18
(a) licence, charter or hiring arrangement of property; and 19
(b) an arrangement under which a right to use, operate or provide 20
goods or services in relation to property is granted by a person to 21
another person. 22
"LGOC" (or "local government owned corporation") means a 23
significant business entity declared to be a local government's LGOC 24
by resolution of the local government that has taken effect. 25
"main undertakings", for a corporatised corporation, means the 26
undertakings stated in the corporation's most recent statement of 27
corporate intent as the corporation's main undertakings. 28
"officer", of a corporatised corporation, means-- 29
(a) a director of the corporation; or 30
(b) the corporation's chief executive officer; or 31
s 39 57 s 39
Local Government Legislation Amendment
(c) for sections other than sections 458IU, 458JB and 1
458JC--another person who is concerned, or takes part, in the 2
corporation's management; or 3
(d) for sections 458IU, 458JB and 458JC--an employee of the 4
corporation. 5
"security" includes inscribed stock, debenture, bond, debenture stock, note 6
and any other document creating, evidencing or acknowledging 7
indebtedness (whether or not constituting a charge on property). 8
"share", for a significant business entity (including a corporatised 9
corporation) or another corporation, means a share in the entity or 10
corporation's share capital. 11
"shareholder" means-- 12
(a) for an LGOC-- 13
(i) if a local government holds all the shares in the LGOC--the 14
local government; or 15
(ii) if 2 or more local governments hold shares in the 16
LGOC--all local governments holding the shares in the 17
LGOC; or 18
(b) for a subsidiary of an LGOC--its LGOC. 19
"shareholder's delegate" see section 458GM. 20
"State tax" means tax imposed under an Act, including this Act. 21
"statement of corporate intent" see section 458DG. 22
"subsidiary", for an LGOC, means a significant business entity declared 23
under this part to be a subsidiary of the LGOC by resolution of a local 24
government that has taken effect. 25
"terms", of appointment or employment, include terms relating to-- 26
(a) remuneration and allowances; and 27
(b) duration of appointment or employment; and 28
(c) termination of appointment or employment. 29
s 39 58 s 39
Local Government Legislation Amendment
to doing of act by corporatised corporation 1
`References
`458DI. In this part, a reference to the doing of an act by a corporatised 2
corporation includes a reference to-- 3
(a) the making or giving of an instrument by the corporation; and 4
(b) the transfer of property by or to the corporation; and 5
(c) the incurring of a liability by the corporation. 6
to local governments etc. 7
`References
`458DJ.(1) In this part, a reference to a candidate's local government is a 8
reference to the local government that, under section 458EA,23 nominated 9
the candidate to become the business of an LGOC or a subsidiary. 10
`(2) In this part, a reference to an LGOC's local government is a 11
reference to the LGOC's shareholder. 12
`(3) In this part, a reference to a subsidiary's local government is a 13
reference to the local government whose LGOC is the subsidiary's 14
shareholder. 15
`(4) In this part, a reference to a significant business entity's local 16
government is a reference to the local government that resolved to establish 17
the entity. 18
`(5) If 2 or more local governments make a resolution about an LGOC, a 19
significant business entity, a candidate or a subsidiary (in each case, the 20
"entity")-- 21
(a) a reference, in subsections (1) to (4), to the entity's local 22
government is a reference to all of the local governments acting 23
jointly; and 24
(b) a reference to the local government area of the entity's local 25
government is a reference to the local government areas of all the 26
local governments. 27
23 Section 458EA (Nomination of candidate LGOC or LGOC's subsidiary)
s 39 59 s 39
Local Government Legislation Amendment
4--Corporatised corporation not a local government 1
`Subdivision
corporation not a local government 2
`Corporatised
`458DK. A corporatised corporation does not form part of a local 3
government. 4
5--Operation of part and application of laws 5
`Subdivision
operation 6
`Extraterritorial
`458DL. It is the intention of Parliament that this part should apply, as 7
far as possible, to-- 8
(a) land and things outside Queensland (whether in or outside 9
Australia); and 10
(b) acts, transactions and things done, entered into or happening 11
outside Queensland (whether in or outside Australia); and 12
(c) land, things, acts and transactions (wherever situated, done, 13
entered into or happening) that would, apart from this part, be 14
governed or otherwise affected by the law of another jurisdiction 15
(including a foreign country). 16
of existing laws 17
`Application
`458DM.(1) This part applies to a corporatised corporation and a local 18
government despite anything in an Act, including this Act, that was enacted 19
before the commencement of this part. 20
`(2) If there is an inconsistency between this part and an Act enacted 21
before the commencement of this part, this part prevails to the extent of the 22
inconsistency. 23
`(3) A regulation may provide that an Act or a provision of an Act, 24
including this Act (other than this part), enacted before the commencement 25
of this part applies to a corporatised corporation with changes stated in the 26
regulation. 27
`(4) A regulation made under subsection (3)-- 28
s 39 60 s 39
Local Government Legislation Amendment
(a) expires 6 months after its notification in the gazette unless it is 1
earlier repealed or its operation is extended by regulation; and 2
(b) cannot operate after 1 year after its notification in the gazette. 3
of powers for corporatised corporations 4
`Delegation
`458DN.(1) A local government may, by resolution, delegate to a 5
corporatised corporation the local government's powers under a local 6
government Act the local government decides are necessary or convenient 7
to facilitate carrying on the corporatised corporation's business. 8
`(2) In deciding whether to delegate a power, the local government must 9
have regard to the key principles of corporatisation and their elements. 10
`(3) A regulation may provide that a power of a local government under 11
this or another Act cannot be delegated under this section. 12
`(4) A delegation of a power ceases to have effect on the making of a 13
regulation under subsection (3) providing that the power cannot be 14
delegated under this section. 15
`(5) Despite a requirement of this or another Act that a power of a local 16
government may only be exercised by resolution of the local government, 17
(including the making of a utility charge at a budget meeting) the power 18
may be delegated under this section but may only be exercised by the 19
corporatised corporation by resolution of its board. 20
`(6) Subsections (1) and (5) do not apply to a power that, under this 21
chapter, must be exercised by resolution of a local government. 22
`(7) A local government may, by resolution, authorise its corporatised 23
corporation to subdelegate powers delegated to the corporatised corporation 24
under this section (other than powers of a local government mentioned in 25
subsection (6)) to a person under section 458GP. 26
`(8) The local government must notify the Minister in writing of each 27
delegation it makes under this section. 28
`(9) For local governments to which section 386 applies, section 386(4) 29
to (6) applies to delegations under this section. 30
`(10) For Brisbane City Council, the City of Brisbane Act 1924, 31
s 39 61 s 39
Local Government Legislation Amendment
section 39C(1)(d) applies to delegations under this section. 1
`(11) This section expires on 1 July 1999. 2
Corporations Law is to be applied to corporatised corporations 3
`How
`458DO. If this part provides that the Corporations Law, or a particular 4
provision of the Corporations Law, applies to a corporatised corporation, 5
the Law or provision applies to the corporation, with all necessary changes 6
and any changes prescribed under a regulation, to the greatest extent 7
possible. 8
`Division 2--Mechanisms for creating LGOCs and subsidiaries 9
1--Proposal for corporatisation 10
`Subdivision
government proposes corporatisation 11
`Local
`458E.(1) A local government may, by resolution, propose that a part of 12
the local government carrying on a significant business activity will be 13
acquired by a corporatised corporation. 14
`(2) The local government may also propose, by resolution, that a 15
corporatised corporation will be an LGOC or a subsidiary of an LGOC. 16
`(3) To remove any doubt, it is declared that a local government may 17
propose a corporatised corporation will acquire-- 18
(a) parts of the local government carrying on more than 1 significant 19
business activity; or 20
(b) parts of 2 or more local governments. 21
`(4) A resolution under subsection (3)(b) is not effective until each local 22
government makes the resolution. 23
24
Example of resolutions for this section--
25
A local government may, by resolution, propose a part of the local government
26
carrying on its significant business activity will be acquired and operated by a
27
corporatised corporation as a subsidiary of another corporatised corporation that will
28
be an LGOC. While the subsidiary will carry on the business, it is answerable to its
s 39 62 s 39
Local Government Legislation Amendment
1
LGOC which in turn is responsible to the local government for the subsidiary carrying
2
on the business.
of candidate LGOC or LGOC's subsidiary 3
`Nomination
`458EA.(1) A local government may, by resolution, nominate a part of a 4
local government carrying on a significant business activity to be a 5
candidate LGOC or candidate subsidiary. 6
`(2) A nomination of a candidate subsidiary must also nominate the 7
LGOC or candidate LGOC of which it is to be a subsidiary. 8
`(3) If parts of 2 or more local governments are nominated, the 9
nomination is not effective until each of the local governments makes a 10
nomination. 11
`Subdivision 2--Preparation of corporatisation charter--preliminary 12
of "corporatisation charter" 13
`Meaning
`458EB. The "corporatisation charter" for a candidate LGOC sets out 14
the steps by which, and the basis on which-- 15
(a) a candidate LGOC's business is to become the business of an 16
LGOC; and 17
(b) the key principles of corporatisation, and their elements, are to be 18
implemented. 19
andidate LGOC's business may become business of LGOC 20
`C
following corporatisation charter 21
`458EC.(1) A candidate LGOC's business may become the business of 22
an LGOC following the preparation and approval of a corporatisation 23
charter and the implementation of its charter transitional part. 24
`(2) However, a candidate LGOC's business may become the business 25
of an LGOC if a corporatisation charter has been prepared and approved 26
although its charter transitional part has not been fully implemented. 27
s 39 63 s 39
Local Government Legislation Amendment
`Subdivision 3--Preparation of corporatisation charter--establishment 1
committee 2
committee to be appointed 3
`Establishment
`458ED.(1) The local government of a candidate LGOC must appoint a 4
committee (the "establishment committee") to-- 5
(a) prepare a draft corporatisation charter for the candidate; and 6
(b) report to the local government on whether the candidate's 7
corporatisation charter is being implemented in a timely, efficient 8
and effective way. 9
(2) If chapter 6, part 1, division 324 applies to a local government, the 10
establishment committee must be appointed under the division. 11
`(3) The establishment committee goes out of existence when the LGOC 12
is established. 13
of establishment committee 14
`Composition
`458EE. Councillors and employees of a local government may be 15
members of an establishment committee appointed by the local government 16
but together must not, at any time, be more than-- 17
(a) before 1 July 1999--two-thirds of the members; or 18
(b) from 1 July 1999--one-half of the members. 19
for appointment of establishment committee 20
`Procedure
`458EF.(1) The local government of a candidate LGOC must adopt 21
processes for selection of appropriate persons for appointment as members 22
of the establishment committee for the candidate. 23
`(2) In appointing a person as a member, the local government must 24
have regard to the person's ability to make a contribution to the committee's 25
performance of its role. 26
`(3) The processes are to be based on the principle that the committee 27
24 Chapter 6, part 1, division 3 (Committees and their meetings)
s 39 64 s 39
Local Government Legislation Amendment
should have the appropriate range of skills to ensure the corporatisation is a 1
success. 2
3
Example of the application of this section--
4
The local government may--
5
(a) identify the key attributes required; and
6
(b) call for nominations through public advertising and canvassing of suitable
7
individuals; and
8
(c) evaluate nominations using independent expertise; and
9
(d) provide for interviews of shortlisted individuals by a nominated group
10
assisted by independent experts; and
11
(e) appoint the most suitable individuals as members.
corporatisation charter to be given to local government 12
`Draft
`458EG.(1) When the establishment committee for a candidate LGOC 13
has prepared the candidate LGOC's draft corporatisation charter, the 14
committee must give a copy of the draft charter to the local government. 15
`(2) The local government may return the draft charter to the committee 16
and ask it to-- 17
(a) consider or further consider any matter and deal with the matter in 18
the draft charter; and 19
(b) revise the draft charter in the light of its consideration or further 20
consideration. 21
`(3) The establishment committee must comply with the request. 22
`Subdivision 4--Preparation of corporatisation charter--requirements 23
for charter 24
to be included in draft corporatisation charter 25
`Matters
`458EH.(1) The draft corporatisation charter must contain the following 26
matters-- 27
(a) an outline of how the key principles of corporatisation and their 28
elements are to be applied by the LGOC and a timetable for their 29
s 39 65 s 39
Local Government Legislation Amendment
application; 1
(b) specification of appropriate systems of accounting for the LGOC 2
and a timetable for their adoption; 3
(c) a timetable for the adoption of commercial management and 4
performance systems by the LGOC; 5
(d) the scope of the LGOC's business activities, including any 6
undertakings outside the LGOC's local government area; 7
(e) a timetable and method for valuing the assets to be transferred to 8
the LGOC and determining the LGOC's capital structure; 9
(f) any other matter stated by the local government. 10
`(2) The local government may determine that the draft corporatisation 11
charter should also contain a timetable for-- 12
(a) identifying any existing activities of a policy formulation or 13
regulatory nature of the candidate; and 14
(b) identifying options for the activities to remain within the local 15
government; and 16
(c) identifying any community service obligations of the LGOC; and 17
(d) costing any community service obligations of the LGOC. 18
`(3) If there is a candidate subsidiary for the candidate LGOC, a reference 19
in this section to an LGOC includes a reference to the subsidiary. 20
matters relevant to draft corporatisation charter preparation 21
`Other
`458EI.(1) The local government may determine-- 22
(a) steps to be taken in preparing the draft corporatisation charter; and 23
(b) any other matter about the preparation of the draft corporatisation 24
charter. 25
`(2) The local government must also determine that the charter identify 26
its parts that are concerned with the process to achieve corporatisation for 27
the candidate LGOC (the "charter transitional part"). 28
s 39 66 s 39
Local Government Legislation Amendment
5--Corporatisation charter--approvals 1
`Subdivision
of draft corporatisation charter 2
`Approval
`458EJ. The local government may, by resolution, approve the 3
establishment committee's draft corporatisation charter, or that charter as 4
amended by the local government, as the candidate's corporatisation charter. 5
of amendments of corporatisation charter 6
`Approval
`458EK. The local government may, by resolution, at any time (whether 7
before or after corporatisation is achieved) approve an amendment of a 8
corporatisation charter. 9
charter open to inspection 10
`Corporatisation
`458EL.(1) A copy of a corporatisation charter must be open to 11
inspection. 12
`(2) A copy of the charter may be purchased at the local government's 13
public office. 14
`(3) The price of a copy of the charter must be no more than the cost to 15
the local government of having the copy available for purchase, and, if the 16
copy is posted to the purchaser, the postage cost. 17
of commercially sensitive matters from corporatisation 18
`Deletion
charter 19
`458EM.(1) A local government may, by resolution, approve a matter in 20
the corporatisation charter may be omitted from the copies of it to be made 21
blic if-- 22
(a) the matter is of a commercially sensitive nature to the 23
corporatised corporation; and 24
(b) a full statement of the matter is given to each councillor. 25
`(2) For section 198(2)(a), a full statement of the matter given to 26
councillors under subsection (1), is information that is confidential to the 27
local government. 28
s 39 67 s 39
Local Government Legislation Amendment
6--Corporatisation charter--expiry of charter transitional 1
`Subdivision
part 2
of charter transitional part 3
`Expiry
`458EN. The charter transitional part of the corporatisation charter for a 4
candidate LGOC expires on the approval by the shareholder of the first 5
statement of corporate intent for the LGOC. 6
`Subdivision 7--Corporatisation facilitative mechanisms--significant 7
business entities 8
of subdivision 9
`Purpose
`458F. This subdivision provides mechanisms to facilitate the 10
corporatisation process by enabling, among other things, the establishment 11
of a significant business entity. 12
business entities 13
`Significant
`458FA.(1) In accordance with a resolution under section 458E, a local 14
government or 2 or more local governments may resolve that a significant 15
business entity be established. 16
`(2) The resolution must state, among other things-- 17
(a) the name of the entity and its functions and powers; and 18
(b) the part of the local government, or parts of local governments, 19
the business of which is to be acquired by the significant business 20
entity after it becomes a corporatised corporation. 21
`(3) The significant business entity is established on the publication in the 22
gazette of notice of the making of the resolution or a later day stated in the 23
resolution and the notice. 24
`(4) On establishment, the significant business entity-- 25
(a) is a body corporate; and 26
(b) has the name stated in the resolution; and 27
s 39 68 s 39
Local Government Legislation Amendment
(c) has a seal; and 1
(d) may sue and be sued in its corporate name; and 2
(e) has such functions and powers as may be specified in the 3
resolution. 4
`(5) A resolution under subsection (1) is not effective until each local 5
government makes the resolution under this section. 6
of assets, liabilities etc. to significant business entity 7
`Transfer
`458FB.(1) For a significant business entity, a local government may, by 8
resolution, make provision about-- 9
(a) whether, and, if so, the extent to which, the entity is the successor 10
in law of a particular person; and 11
(b) the assets and liabilities that are, or are not, assets and liabilities of 12
the entity or of someone else; and 13
(c) the consideration for a transfer of assets to the entity, which may 14
include a debt to be owed by the entity to the local government; 15
and 16
(d) the instruments that are, or are not, to apply to the entity, 17
including whether or not the instruments are taken to be 18
instruments-- 19
(i) to which the entity is a party; or 20
(ii) that were given to, by or in favour of the entity; or 21
(iii) in which a reference is made to the entity; or 22
(iv) under which money is or may become payable, or other 23
property is to be, or may become liable to be, transferred, 24
conveyed or assigned to or by the entity; and 25
(e) the proceedings to which the entity becomes a party in 26
substitution for someone else; and 27
(f) the existing employees of the local government and their rights. 28
`(2) Without limiting subsection (1)-- 29
(a) a resolution under subsection (1)(c) may make provision about-- 30
s 39 69 s 39
Local Government Legislation Amendment
(i) how the consideration is to be decided; and 1
(ii) the changing of the consideration, whether before or after the 2
entity concerned becomes a corporatised corporation; and 3
(iii) the terms of the debt; and 4
(b) a resolution under subsection (1)(d) may make provision about 5
whether, and, if so, the extent to which, instruments apply to the 6
entity in substitution for someone else; and 7
(c) a resolution under subsection (1)(f) may provide for the office 8
(including that of chief executive officer or a senior executive) the 9
employee is to hold in the entity when it becomes a corporatised 10
corporation. 11
`(3) A resolution under this section takes effect on publication in the 12
gazette of notice of the making of the resolution or a later day stated in the 13
resolution and the notice. 14
`(4) A resolution under subsection (1)(f) has effect despite the following 15
provisions-- 16
(a) section 458FH; 17
(b) division 6, section 458LQ.25 18
`(5) A resolution under this section must be stated to commence on the 19
entity becoming a corporatised corporation or at a later time. 20
8--Significant business entities--directors and employees 21
`Subdivision
of boards including councillors and local government 22
`Composition
employees 23
`458FC.(1) A councillor or local government employee may be a 24
director of the local government's significant business entity that is, or is to 25
become, an LGOC if the councillor or employee is qualified for 26
25 Section 458FH (Application of certain provisions about directors and executives
to significant business entities), division 6 (Additional provisions relating to
chief executive officers), section 458LQ (Appointment of chief executive
officer)
s 39 70 s 39
Local Government Legislation Amendment
appointment. 1
`(2) However, directors mentioned in subsection (1) must not, at any 2
time, be more than-- 3
(a) before 1 July 1999--two-thirds of all directors; or 4
(b) from 1 July 1999--one-half of all directors. 5
`(3) At least one-third of directors of a significant business entity that is, 6
or is to become, an LGOC must not be councillors or employees of the 7
local government or employees of the significant business entity. 8
`(4) At least one-third of directors of a subsidiary must not be employees 9
of its LGOC or the subsidiary. 10
`(5) An appointment of a councillor or local government employee as 11
director is made on the terms the local government decides. 12
`(6) In taking part in meetings of the board of a significant business 13
entity that is, or is to become, an LGOC, a director who is a councillor or 14
local government employee must act in the best interests of the significant 15
business entity. 16
`(7) For a councillor to whom section 17726 applies, if the councillor acts 17
in accordance with subsection (6), the councillor is taken, for 18
section 177(2), to act in compliance with the section. 19
`(8) For a local government employee to whom section 72927 applies, if 20
the employee acts in accordance with subsection (6) the employee is taken, 21
for section 729, to act in a way that shows proper concern for the public 22
interest. 23
`(9) Before 1 July 2001, the Minister must complete a review of the 24
appropriateness of councillors and employees of local governments being 25
directors of LGOCs, including LGOCs mentioned in subsection (10). 26
`(10) From 1 July 2001, this section only applies to a significant 27
business entity that is or is to become an LGOC, if its activities (being 28
former significant business activities of its local government) are carried on 29
by its subsidiaries. 30
26 Section 177 (Councillors' role)
27 Section 729 (Integrity of local government employees)
s 39 71 s 39
Local Government Legislation Amendment
1
Example for subsection (10)--
2
From 1 July 2001, this section will apply to an LGOC which does not itself trade
3
in goods and services but is the shareholder of subsidiaries that do trade in goods and
4
services.
`(11) Subsections (2)(a), (3) and (4) expire on 1 July 2001. 5
and allowances to directors of significant business 6
`Remuneration
entities who are councillors or employees of a local government 7
`458FD.(1) Unless the local government decides otherwise, a councillor 8
or employee of the local government who is also a director of the local 9
government's significant business entity is entitled as a director to 10
remuneration and allowances payable to a director of the significant 11
business entity. 12
`(2) If the local government decides its councillors or employees are not 13
entitled to directors' remuneration and allowances, those remunerations and 14
allowances must be paid by the significant business entity to the local 15
government. 16
`(3) From 1 July 2001, this section only applies to an LGOC mentioned 17
in section 458FC(10). 18
on councillors and employees being directors 19
`Restrictions
`458FE.(1) A person must not be both a councillor or employee of a 20
local government and a director of the local government's significant 21
business entity. 22
`(2) Subsection (1) does not apply to a significant business entity that is 23
or is to become an LGOC-- 24
(a) if it is a significant business entity mentioned in 25
section 458FC(10); or 26
(b) for another significant business entity--until 1 July 2001. 27
`(3) A person who is both a councillor or employee of a local 28
government and a director of a significant business entity (that is or is to 29
become an LGOC) immediately before subsection (1) applies to it, ceases 30
to be a director on the subsection applying to the entity. 31
s 39 72 s 39
Local Government Legislation Amendment
`(4) From 1 July 2001-- 1
(a) at least one-half of the directors of a significant business entity 2
that is or is to become an LGOC must not be employees of the 3
entity; and 4
(b) at least one-half of the directors of a subsidiary must not be 5
employees of the subsidiary or its LGOC; and 6
(c) at least one-half of the directors of a significant business entity 7
mentioned in section 458FC(10) must not be councillors or 8
employees of the local government or employees of the entity. 9
`(5) Subsection (4) applies after 1 July 2001. 10
`(6) From 1 July 2001-- 11
(a) at least one-half of the directors of an LGOC must not be 12
employees of the LGOC; and 13
(b) at least one-half of the directors of a subsidiary must not be 14
employees of the subsidiary or its LGOC. 15
on councillors being employees 16
`Prohibition
`458FF. A person must not be both a councillor of a local government 17
and an employee of a significant business entity. 18
`Subdivision 9--Interim board 19
board of directors for significant business entity 20
`Interim
`458FG.(1) A local government may, by resolution, decide-- 21
(a) on a stated day, its significant business entity that is not a 22
corporatised corporation is to have an interim board of directors; 23
and 24
(b) the role of the board. 25
`(2) On the significant business entity becoming a corporatised 26
corporation, the directors on the interim board go out of office. 27
s 39 73 s 39
Local Government Legislation Amendment
of certain provisions about directors and executives to 1
`Application
significant business entities 2
`458FH.(1) This section applies to a significant business entity that is not 3
a corporatised corporation. 4
`(2) Sections 458GU to 458GW apply in relation to the significant 5
business entity, with all necessary changes and any changes prescribed by 6
regulation, as if it were a corporatised corporation. 7
`(3) Division 5 applies in relation to the significant business entity, with 8
all necessary changes and any changes prescribed by regulation, as if it were 9
a corporatised corporation and its interim board of directors were its board 10
of directors. 11
`(4) Division 6 applies in relation to the significant business entity that is 12
to become an LGOC, with all necessary changes and any changes 13
prescribed by regulation, as if it were a corporatised corporation and its 14
interim board of directors were its board of directors. 15
`(5) Division 6 applies in relation to a significant business entity that is to 16
become a subsidiary, with all necessary changes, and any changes 17
prescribed by regulation and the change in subsection (6), as if it were a 18
corporatised corporation and its interim board of directors were its board of 19
directors. 20
`(6) For a significant business entity that is to become a subsidiary, 21
section 458LQ28 is changed as follows-- 22
23
Appointment of chief executive officer for significant business entity that is to
24
become a subsidiary
25
458LQ.(1) A chief executive officer for a significant business entity that is to
26
become a subsidiary is to be appointed by the entity's interim board of directors.
27
(2) However, before the interim board of directors makes the appointment, it must
28
consult with the interim board of directors of its parent corporation.
29
(3) In this section--
30
"parent corporation" of a significant business entity that is to become a subsidiary
31
means the significant business entity that is to become the LGOC of which the
32
candidate subsidiary is a subsidiary.
`(7) A regulation made under this section-- 33
28 Section 458LQ (Appointment of chief executive officer)
s 39 74 s 39
Local Government Legislation Amendment
(a) expires 6 months after its notification in the gazette unless it is 1
earlier repealed or its operation is extended under a regulation; and 2
(b) cannot operate after 1 year after its notification in the gazette. 3
10--Corporatisation facilitative mechanisms--general 4
`Subdivision
to significant business entities 5
`Assistance
`458FI. A significant business entity, that is not a corporatised 6
corporation, may arrange with the chief executive officer of the local 7
government for the services of officers and employees of the local 8
government or entities to be made available to it. 9
capital and issue of shares 10
`Share
`458FJ.(1) The local government may, by resolution, provide that, on a 11
stated day before a significant business entity becomes a corporatised 12
corporation, the significant business entity is taken to have a share capital of 13
a stated amount. 14
`(2) The resolution takes effect on publication in the gazette of notice of 15
the making of the resolution or on a later day stated in the resolution and the 16
notice. 17
`(3) Before becoming a corporatised corporation, the entity must apply 18
the part of its capital that the local government directs in paying up, in full, 19
shares in itself. 20
`(4) As soon as practicable after complying with subsection (3), the 21
entity must issue the shares paid up under the subsection. 22
`(5) If an entity does not have an interim board of directors, the local 23
government may apply the part of the capital and issue the shares on the 24
entity's behalf. 25
`(6) Division 3, subdivision 3 applies to the entity as if it were a 26
corporatised corporation. 27
`(7) The local government may, by written notice to the entity, give 28
directions about the issue, holding and transfer of shares paid up under 29
s 39 75 s 39
Local Government Legislation Amendment
subsection (3). 1
`(8) The entity must ensure the directions are complied with. 2
of share capital 3
`Variation
`458FK.(1) This section applies to a significant business entity that is not 4
a corporatised corporation. 5
`(2) A local government may, by resolution, vary the share capital of the 6
significant business entity. 7
`(3) Without limiting subsection (2), a resolution may provide for-- 8
(a) the issue of further shares in the significant business entity; or 9
(b) the cancellation of issued shares in the significant business entity; 10
or 11
(c) the consolidation or division of issued shares in the significant 12
business entity. 13
`(4) A resolution under this section takes effect on publication in the 14
gazette of notice of the making of the resolution or on a later day stated in 15
the resolution and the notice. 16
does not affect existing legal relationships 17
`Subdivision
`458FL.(1) This subdivision has effect despite anything in any 18
instrument. 19
`(2) Nothing done under this subdivision in relation to a significant 20
business entity-- 21
(a) places the entity or the local government in breach of contract or 22
confidence or otherwise makes the entity or the local government 23
liable for a civil wrong; or 24
(b) makes the entity or the local government in breach of any 25
instrument, including an instrument prohibiting, restricting or 26
regulating the assignment or transfer of any right or liability or the 27
disclosure of any information; or 28
(c) is taken to fulfil a condition-- 29
s 39 76 s 39
Local Government Legislation Amendment
(i) allowing a person to terminate an instrument or obligation or 1
modify the operation or effect of an instrument or obligation; 2
or 3
(ii) requiring any money to be paid before its stated maturity; or 4
(d) releases a surety or other obligee (in whole or part) from an 5
obligation. 6
`(3) If, apart from this subsection, the advice or consent of a person 7
would be necessary under an instrument in order to give effect to this part, 8
the advice is taken to have been obtained or the consent is taken to have 9
been given. 10
government may deal with other matters 11
`Local
`458FM.(1) A local government may, by resolution, make provision 12
about any matter for which it is necessary or convenient to make provision 13
to facilitate the corporatisation of a significant business entity. 14
`(2) Also, a resolution under subsection (1) may change the name of a 15
significant business entity. 16
`(3) A resolution under subsection (2) does not affect the legal 17
personality of the entity whose name is changed. 18
`(4) Unless a contrary intention appears, a reference in an Act or 19
document to the entity by its former name is taken to be a reference to the 20
entity by its new name. 21
`(5) A resolution under this section takes effect on publication in the 22
gazette of notice of the making of the resolution or on a later day stated in 23
the resolution and the notice. 24
11--Acting chief executive officer of significant business 25
`Subdivision
entity on corporatisation 26
of acting chief executive officer for significant business 27
`Appointment
entity on corporatisation 28
`458FN.(1) Before a significant business entity becomes a corporatised 29
corporation, the entity's local government may, on the recommendation of 30
s 39 77 s 39
Local Government Legislation Amendment
the establishment committee, appoint an acting chief executive officer for 1
the entity. 2
`(2) An appointment under this section takes effect on the day the entity 3
becomes a corporatised corporation. 4
`(3) This section does not apply if there is an interim board for the entity. 5
`Division 3--Local government owned corporations and subsidiaries 6
1--Declaration of LGOCs and subsidiaries 7
`Subdivision
of entity as LGOC 8
`Declaration
`458G.(1) If a local government is satisfied the transitional part of the 9
corporatisation charter of its candidate LGOC has been sufficiently 10
implemented or the candidate's business would, apart from a resolution 11
under section 458FB, be otherwise ready to become the business of an 12
LGOC, the local government may resolve that a significant business entity 13
that is not a corporatised corporation become an LGOC. 14
`(2) The resolution must state the functions of the LGOC. 15
`(3) A significant business entity cannot become an LGOC unless it 16
complies with, or on becoming an LGOC will comply with, 17
section 458GA. 18
`(4) The significant business entity becomes an LGOC in accordance 19
with the resolution under subsection (1) with the functions stated in the 20
resolution on publication in the gazette of notice of the making of the 21
resolution or a later day stated in the resolution and the notice. 22
for LGOCs 23
`Requirements
`458GA.(1) An LGOC is not a corporation registered under the 24
Corporations Law. 25
`(2) An LGOC must have a board of directors and have a share capital 26
and issued shares. 27
s 39 78 s 39
Local Government Legislation Amendment
of entity as subsidiary 1
`Declaration
`458GB.(1) If a local government is satisfied the candidate subsidiary's 2
business would, apart from a resolution under section 458FB, be ready to 3
become the business of a subsidiary of an LGOC, the local government 4
may resolve that a significant business entity that is not a corporatised 5
corporation become a subsidiary of the LGOC. 6
`(2) The resolution must state the functions of the subsidiary. 7
`(3) A significant business entity cannot become a subsidiary of an 8
LGOC unless it complies with, or on becoming a subsidiary of an LGOC 9
will comply with, section 458GC. 10
`(4) The significant business entity becomes a subsidiary of an LGOC in 11
accordance with the resolution under subsection (1) with the functions 12
stated in the resolution on publication in the gazette of notice of the making 13
of the resolution or a later day stated in the resolution and the notice. 14
for subsidiaries 15
`Requirements
`458GC.(1) A subsidiary of an LGOC is not a corporation registered 16
under the Corporations Law. 17
`(2) A subsidiary of an LGOC must have a board of directors and have a 18
share capital and issued shares. 19
does not affect legal personality etc. 20
`Declaration
`458GD. The declaration of a significant business entity as a corporatised 21
corporation does not, of itself, affect the legal personality of the entity or its 22
functions and powers. 23
2--Application of Corporations Law 24
`Subdivision
of Corporations Law to corporatised corporations 25
`Application
`458GE.(1) The provisions of the Corporations Law stated under a 26
regulation as applying to a corporatised corporation apply to the 27
corporatised corporation as if-- 28
s 39 79 s 39
Local Government Legislation Amendment
(a) the corporatised corporation were a public company and a 1
company limited by shares; and 2
(b) the shares in the corporatised corporation held by the corporatised 3
corporation's shareholder were shares held in the corporatised 4
corporation as a public company and a company limited by 5
shares. 6
`(2) The provisions of the Corporations Law (other than those applied to 7
a corporatised corporation under subsection (1) or another provision of this 8
part) do not apply to the corporatised corporation. 9
`(3) A regulation made under subsection (1)-- 10
(a) expires 6 months from the day on which it is notified in the 11
gazette unless it is earlier repealed or its operation is extended 12
under a regulation; and 13
(b) cannot operate after 1 year after its notification in the gazette. 14
corporation exempt public authority 15
`Corporatised
`458GF. A corporatised corporation is an exempt public authority for the 16
Corporations Law. 17
`Subdivision 3--Shares of corporatised corporations 18
governments to be shareholder of LGOCs 19
`Local
`458GG.(1) The local government that resolved the establishment of an 20
LGOC must be the LGOC's shareholder. 21
`(2) If the LGOC is formed on, the resolution of more than 1 local 22
government, each of the local governments must be a shareholder of the 23
LGOC. 24
to be shareholder of LGOC's subsidiary 25
`LGOC
`458GH. For a subsidiary of an LGOC, the LGOC must be the 26
shareholder of the subsidiary. 27
s 39 80 s 39
Local Government Legislation Amendment
2 or more local governments are shareholders, shares and 1
`If
entitlements apportioned by agreement 2
`458GI.(1) This section applies if 2 or more local governments are, or 3
are to be, shareholders of an LGOC. 4
`(2) Each local government is to hold the number or proportion of shares 5
in the LGOC as the local governments agree. 6
`(3) Subject to section 458GL, each local government is entitled to rights 7
as a shareholder of the LGOC as agreed by resolution of the local 8
governments. 9
of shares and share capital of corporatised corporation 10
`Variation
`458GJ.(1) The shareholder of a corporatised corporation may vary the 11
share capital of the corporation. 12
`(2) Without limiting subsection (1), the shareholder may provide for-- 13
(a) the issue of further shares in the corporation; or 14
(b) the cancellation of issued shares in the corporation; or 15
(c) the consolidation or division of issued shares in the corporation. 16
`(3) If the shareholder is a local government, the local government may 17
only act under this section by resolution. 18
`(4) If the shareholder is an LGOC, the LGOC may only act under this 19
section by resolution of its board. 20
`(5) A resolution under this section takes effect on publication in the 21
gazette of notice of the making of the resolution or on a later day stated in 22
the resolution and the notice. 23
issue etc. of shares 24
`Transfer,
`458GK.(1) An LGOC's shareholder may transfer shares in the LGOC 25
only to-- 26
(a) another local government; or 27
(b) if the LGOC is to become a subsidiary of another LGOC--the 28
other LGOC. 29
s 39 81 s 39
Local Government Legislation Amendment
`(2) An LGOC may transfer shares in its subsidiary only to-- 1
(a) another LGOC; or 2
(b) if the subsidiary is to become an LGOC--to its local government. 3
must act jointly 4
`Shareholders
`458GL.(1) This section applies if an LGOC has more than 1 5
shareholder. 6
`(2) If this part authorises an LGOC's shareholder to do an act, the 7
shareholders may only do the act jointly. 8
`(3) If this part requires the shareholder to do an act, the shareholders 9
must do the act jointly. 10
4--Shareholders and councillors 11
`Subdivision
of councillors as shareholder's delegates 12
`Appointment
`458GM.(1) A local government may, by resolution, on the terms the 13
local government decides, appoint 2 of its councillors as delegates 14
("shareholder's delegates") of the local government in its capacity as 15
shareholder of its LGOC. 16
`(2) If more than one-half of the directors of the LGOC are councillors or 17
employees of the local government, the directors must not be shareholder's 18
delegates for the LGOC. 19
`(3) Subsection (2) and this subsection expire on 1 July 1999. 20
`(4) When acting as delegates of a local government under this part, the 21
shareholder's delegates must act jointly. 22
`(5) Subject to direction by the local government by resolution, its 23
shareholder's delegates may, on behalf of the local government, exercise the 24
following powers of the local government in relation to the local 25
government's corporatised corporations-- 26
(a) appointment (including terms of appointment) and removal of 27
directors of the board of an LGOC or of the first board of a 28
subsidiary of an LGOC (including chairpersons and deputy 29
s 39 82 s 39
Local Government Legislation Amendment
chairpersons); 1
(b) monitoring the performance of the LGOC and its subsidiaries; 2
(c) making requests, or giving directions about and agreeing to a 3
corporate plan and statement of corporate intent or changes to 4
them; 5
(d) exempting an LGOC from including matters in its statement of 6
corporate intent; 7
(e) giving directions to a board of an LGOC, other than if the power 8
is stated to be by resolution of the local government. 9
`(6) A shareholder's delegate, in exercising a power under this section, 10
must act to promote the principles of this part as they apply to the LGOC. 11
`(7) A power exercised by a shareholder's delegate of a local government 12
is taken to have been exercised by the local government. 13
`(8) A shareholder's delegate must give the local government the reports 14
on the performance of the LGOC requested by the local government, 15
including information on decisions made by the LGOC, but excluding 16
relevant commercially sensitive material given to the delegates by the 17
LGOC. 18
`(9) A shareholder's delegate does not incur civil liability for an act or 19
omission done or omitted to be done honestly and without negligence under 20
this subdivision in relation to the LGOC or its subsidiaries. 21
`(10) A liability that would, apart from subsection (9), attach to a 22
shareholder's delegate attaches instead to the local government. 23
`(11) If a shareholders' delegate lawfully makes a request or gives a 24
direction to an LGOC under this section, the LGOC must comply with the 25
request or direction as if the delegate were the local government. 26
`Subdivision 5--Board of directors 27
corporation to have board of directors 28
`Corporatised
`458GN. Each corporatised corporation must have a board of directors 29
(the "board"). 30
s 39 83 s 39
Local Government Legislation Amendment
of board 1
`Role
`458GO. The role of a corporatised corporation's board includes the 2
following matters-- 3
(a) responsibility for the corporation's commercial policy and 4
management; 5
(b) ensuring, as far as possible, the corporation achieves, and acts in 6
accordance with, its statement of corporate intent and, for an 7
LGOC, its corporatisation charter and carries out its objectives in 8
its statement of corporate intent; 9
(c) accounting to the corporation's shareholder for its performance as 10
required by this part and other laws applying to the corporation; 11
(d) ensuring the corporation otherwise performs its functions in a 12
proper, effective and efficient way. 13
by board 14
`Delegation
`458GP. A corporatised corporation's board may, by resolution, 15
delegate its powers to-- 16
(a) a director; or 17
(b) a committee of the board; or 18
(c) the corporation's chief executive officer; or 19
(d) an employee of the corporation. 20
provisions about board--div 5 21
`Additional
`458GQ. Additional provisions about the board are in division 5. 22
irst board of LGOC 23
`F
`458GR.(1) For the appointment of the first board of an LGOC, the local 24
government of the candidate LGOC must act under sections 458L(1) and 25
458LA(1) before its business becomes the business of the LGOC. 26
`(2) The appointment takes effect when the candidate's business 27
becomes the business of the LGOC. 28
s 39 84 s 39
Local Government Legislation Amendment
rst board of LGOC subsidiary 1
`Fi
`458GS.(1) For the appointment of the first board of a subsidiary of an 2
LGOC-- 3
(a) the LGOC; or 4
(b) if the LGOC is not yet established--the local government of the 5
candidate subsidiary; 6
must act under sections 458L(2) and 458LA(2) before the candidate's 7
business becomes the business of the subsidiary. 8
`(2) For the local government acting under the sections, a reference in the 9
sections to the LGOC is taken to be a reference to the local government of 10
the candidate subsidiary. 11
`(3) An appointment under this section-- 12
(a) takes effect when the candidate subsidiary's business becomes 13
the business of the subsidiary; and 14
(b) if made by the local government--must be for not more than 15
3 months. 16
6--Chief executive officer 17
`Subdivision
corporations to have chief executive officer 18
`Corporatised
`458GT. Each corporatised corporation is to have a chief executive 19
officer. 20
of chief executive officer 21
`Duties
`458GU. A corporatised corporation's chief executive officer is, under 22
its board, to manage the corporation. 23
done by chief executive officer 24
`Things
`458GV. Anything done in the name of, or for, a corporatised 25
corporation by its chief executive officer is taken to have been done by the 26
corporation. 27
s 39 85 s 39
Local Government Legislation Amendment
by chief executive officer 1
`Delegation
`458GW.(1) A corporatised corporation's chief executive officer may 2
delegate the chief executive officer's powers (including a power delegated to 3
the chief executive officer) to an employee of the corporation. 4
`(2) Subsection (1) has effect subject to any directions of the 5
corporation's board. 6
provisions about chief executive officer--div 6 7
`Additional
`458GX. Additional provisions about a corporatised corporation's chief 8
executive officer are in division 6. 9
`Subdivision 7--Corporate plan--general 10
must have corporate plan 11
`LGOC
`458H. Each LGOC must have a corporate plan. 12
plan to apply to subsidiaries 13
`Corporate
`458HA. If an LGOC has a subsidiary, the LGOC's corporate plan must 14
apply to the LGOC and its subsidiary. 15
`Subdivision 8--Preparation, agreement on and changes to corporate 16
plan 17
corporate plan 18
`Draft
`458HB.(1) Before 1 May of each year, an LGOC's board must prepare, 19
and submit to its shareholder for agreement, a draft corporate plan for at 20
least 3 years starting on 1 July of the year. 21
`(2) However, for the LGOC's first corporate plan, the LGOC must, 22
within 1 month after becoming an LGOC, prepare, and submit to its 23
shareholder for agreement, a draft corporate plan to apply from its 24
corporatisation to, at the earliest, the third 30 June after it becomes a 25
corporatised corporation. 26
s 39 86 s 39
Local Government Legislation Amendment
`(3) The board and the shareholder must try to reach agreement on the 1
draft plan as soon as possible and, except if subsection (2) applies, not later 2
than 1 month before the start of the period covered by the plan. 3
of corporate plan 4
`Duration
`458HC. Subject to section 458HF, a corporate plan of an LGOC 5
continues in force until a new corporate plan takes effect. 6
procedures in relation to draft corporate plan 7
`Special
`458HD.(1) The shareholder may return the draft corporate plan to the 8
board and ask it to-- 9
(a) consider or further consider any matter and deal with the matter in 10
the draft plan; and 11
(b) revise the draft plan in the light of its consideration or further 12
consideration. 13
`(2) The board must comply with the request as a matter of urgency. 14
`(3) If a draft corporate plan has not been agreed to by the shareholder 15
within 2 months from the day on which the LGOC becomes an LGOC, the 16
shareholder may, by written notice, direct the board to-- 17
(a) take stated steps in relation to the draft plan; or 18
(b) make stated changes to the draft plan. 19
`(4) If a draft corporate plan, other than the first corporate plan, for a 20
period from 1 July in a year has not been agreed to by the shareholder by 21
1 June of the year, the shareholder may, by written notice, direct the board 22
to-- 23
(a) take stated steps in relation to the draft plan; or 24
(b) make stated changes to the draft plan. 25
`(5) The board must immediately comply with a direction under 26
subsection (3) or (4). 27
`(6) A copy of a direction must be open to inspection. 28
s 39 87 s 39
Local Government Legislation Amendment
plan on agreement 1
`Corporate
`458HE. Subject to section 458HC, when a draft corporate plan of an 2
LGOC is agreed to by the shareholder, it becomes the LGOC's corporate 3
plan for the period of the plan. 4
plan pending agreement 5
`Corporate
`458HF.(1) If a draft corporate plan for an LGOC has not been agreed to 6
by the shareholder within 1 month from the day on which it becomes an 7
LGOC ("the time"), the last draft corporate plan before the time is taken to 8
be the LGOC's corporate plan until a draft corporate plan becomes the 9
LGOC's corporate plan under section 458HE. 10
`(2) If an LGOC's shareholder has not agreed to a draft corporate plan, 11
other than the first corporate plan, on or before 1 July in a year (also "the 12
time"), the last draft corporate plan before the time is taken to be the 13
LGOC's corporate plan until a draft corporate plan becomes the LGOC's 14
corporate plan under section 458HE. 15
`(3) In this section-- 16
"last draft corporate plan", before the time, means the draft corporate 17
plan submitted, or last submitted, by the board to the shareholder (with 18
any changes made by the board, whether before or after the time, at the 19
direction of the shareholder). 20
to corporate plan 21
`Changes
`458HG.(1) An LGOC's corporate plan may be changed by its board 22
with the agreement of its shareholder. 23
`(2) The shareholder may, by written notice, direct the board to change 24
the corporate plan. 25
`(3) Before giving the direction, the shareholder must consult with the 26
board and take its views into account. 27
`(4) A copy of the direction must be open to inspection. 28
s 39 88 s 39
Local Government Legislation Amendment
plan open to inspection 1
`Corporate
`458HH.(1) A copy of an LGOC's corporate plan must be open to 2
inspection at the local government's public office. 3
`(2) A copy of the corporate plan may be purchased at the local 4
government's public office. 5
`(3) The price of a copy of the corporate plan must be no more than the 6
cost to the local government of having a copy available for purchase, and, if 7
the copy is posted to the purchaser, the postage cost. 8
of commercially sensitive matters from corporate plan 9
`Deletion
`458HI.(1) A matter in the corporate plan of an LGOC may be omitted 10
from the copies of it to be made public if-- 11
(a) the matter is of a commercially sensitive nature to the LGOC or 12
its subsidiary; and 13
(b) a full statement of the matter is given-- 14
(i) if there are shareholder's delegates29--to the delegates; or 15
(ii) if there are no shareholder's delegates--to each councillor of 16
the LGOC's local government. 17
`(2) For section 198(2)(a), a full statement of the matter given to 18
shareholder's delegates or councillors under subsection (1)(b), is 19
information that is confidential to the local government.30 20
`Subdivision 9--Statement of corporate intent--general 21
corporations must have statements of corporate intent 22
`Corporatised
`458HJ.(1) Each corporatised corporation must have a statement of 23
corporate intent for each financial year. 24
`(2) If the corporation becomes a corporatised corporation other than on 25
29 Section 458GM (Appointment of councillors as shareholder's delegates) provides
for appointment of shareholder's delegates.
30 Section 198 (Improper use of information by councillors)
s 39 89 s 39
Local Government Legislation Amendment
1 July in a year, its first statement of corporate intent must be for the period 1
from its corporatisation to 30 June next following. 2
statement of corporate intent must be consistent with 3
`LGOC's
corporate plan 4
`458HK. An LGOC's statement of corporate intent must be consistent 5
with its corporate plan. 6
statement of corporate intent to be consistent with 7
`Subsidiary's
LGOC's corporate plan and statement of corporate intent 8
`458HL. A subsidiary's statement of corporate intent must be consistent 9
with its LGOC's corporate plan and statement of corporate intent. 10
`Subdivision 10--Matters to be included in statement of corporate intent 11
to be included in statement of corporate intent 12
`Matters
`458HM.(1) A corporatised corporation's statement of corporate intent 13
must state the corporation's financial and non-financial performance targets 14
for its activities for the relevant financial year. 15
`(2) A corporatised corporation's statement of corporate intent must 16
include the following additional matters-- 17
(a) an outline of the corporation's objectives and functions; 18
(b) an outline of the nature and scope of the activities proposed to be 19
carried on by the corporation in the relevant financial year, 20
including details of any changes, since the last statement of 21
corporate intent, to the corporation's undertakings outside the area 22
of its local government; 23
(c) an outline of the corporation's main undertakings and any 24
intention to dispose of any of them in the relevant financial year; 25
(d) the corporation's capital structure and dividend policies; 26
(e) an outline of the major infrastructure investments proposed to be 27
carried out by the corporation in the relevant financial year; 28
s 39 90 s 39
Local Government Legislation Amendment
(f) an outline of the outstanding and proposed borrowings by the 1
corporation; 2
(g) an outline of the policies adopted by the corporation to minimise 3
and manage any risk of investments and borrowings that may 4
adversely affect its financial stability; 5
(h) an outline of the corporation's policies and procedures relating to 6
the acquisition and disposal of major assets; 7
(i) the corporation's accounting policies applying to the preparation 8
of its accounts; 9
(j) the type of information to be given to the shareholder, including 10
information to be given in quarterly and annual reports; 11
(k) an outline of the employment and industrial relations policies of 12
the corporation; 13
(l) for an LGOC--any proposal for the establishment of a subsidiary 14
of the LGOC; 15
(m) the matters set out in the LGOC's charter transitional part that 16
continue to be relevant to the operations of the corporatised 17
corporation. 18
`(3) The corporatised corporation's shareholder may exempt the 19
corporation from including any matter, or any aspect of a matter, mentioned 20
in subsection (2) in the statement of corporate intent if the shareholder 21
considers the matter or aspect is not materially relevant to the corporatised 22
corporation or its activities. 23
`(4) The statement of corporate intent must also include the matters 24
concerning its community service obligations required under 25
section 458IA.31 26
`(5) Subsections (1), (2) and (4) do not limit the matters that may be 27
included in a statement of corporate intent. 28
29
Example for subsection (5)--
30
The statement of corporate intent could include matters set out in the LGOC's
31
corporatisation charter.
31 Section 458IA (Community service obligations to be specified in statement of
corporate intent)
s 39 91 s 39
Local Government Legislation Amendment
of commercially sensitive matters from statement of 1
`Deletion
corporate intent 2
`458HN.(1) A matter in the statement of corporate intent of a 3
corporatised corporation may be omitted from the copies of it to be made 4
public if-- 5
(a) the matter is of a commercially sensitive nature to the 6
corporatised corporation; and 7
(b) a full statement of the matter is given-- 8
(i) if the corporatised corporation is an LGOC and there are 9
shareholder's delegates32--to the delegates; or 10
(ii) if the corporatised corporation is an LGOC and there are no 11
shareholder's delegates--to each councillor of the 12
shareholder; or 13
(iii) if the corporatised corporation is a subsidiary and there are 14
shareholder's delegates of its LGOC--to the delegates; or 15
(iv) if the corporatised corporation is a subsidiary and there are 16
no shareholder's delegates of its LGOC--to each councillor 17
of the LGOC's shareholder. 18
`(2) For section 198(2)(a), a full statement of the matter given to 19
shareholder's delegates or councillors under subsection (1)(b), is 20
information that is confidential to the local government.33 21
`Subdivision 11--Preparation, agreement on and modification of 22
statement of corporate intent 23
statement of corporate intent 24
`Draft
`458HO.(1) For each financial year, a corporatised corporation's board 25
must prepare, and submit to its shareholder for agreement, a draft statement 26
of corporate intent before 1 May preceding the financial year. 27
32 Section 458GM (Appointment of councillors as shareholder's delegates) provides
for appointment of shareholder's delegates.
33 Section 198 (Improper use of information by councillors)
s 39 92 s 39
Local Government Legislation Amendment
`(2) For a corporatised corporation's first statement of corporate intent, 1
the corporation must, within 1 month after becoming a corporatised 2
corporation, prepare, and submit to its shareholder for agreement, a draft 3
statement of corporate intent from its becoming a corporatised corporation. 4
`(3) The board and the shareholder must try to reach agreement on the 5
draft statement as soon as possible and, except if subsection (2) applies, not 6
later than the start of the financial year. 7
with industrial organisations etc. 8
`Consultation
`458HP. In preparing a statement of corporate intent, a corporatised 9
corporation's board may consult with interested industrial organisations and 10
employees. 11
procedures in relation to draft statement of corporate intent 12
`Special
`458HQ.(1) The shareholder may return the draft statement of corporate 13
intent to the board and ask it to-- 14
(a) consider or further consider any matter and deal with the matter in 15
the draft statement; and 16
(b) revise the draft statement in the light of its consideration or further 17
consideration. 18
`(2) The board must comply with the request as a matter of urgency. 19
`(3) If a draft statement of corporate intent has not been agreed to by the 20
shareholder within 2 months from the day on which the corporation 21
becomes a corporatised corporation, the shareholder may, by written notice, 22
direct the board to-- 23
(a) take stated steps in relation to the draft statement; or 24
(b) make stated changes to the draft statement. 25
`(4) If a draft statement of corporate intent of the corporation, other than 26
its first statement of corporate intent, for a period from 1 July in a year has 27
not been agreed to by its shareholder by 1 July of the year, the shareholder 28
may, by written notice, direct the board to-- 29
(a) take stated steps in relation to the draft statement; or 30
s 39 93 s 39
Local Government Legislation Amendment
(b) make stated changes to the draft statement. 1
`(5) The board must immediately comply with a direction under 2
subsection (3) or (4). 3
`(6) A copy of a direction must be open to inspection. 4
of corporate intent on agreement 5
`Statement
`458HR. When a draft statement of corporate intent of a corporatised 6
corporation is agreed to by its shareholder, it becomes the corporation's 7
statement of corporate intent for the period of the statement. 8
of corporate intent pending agreement 9
`Statement
`458HS.(1) If a draft statement of corporate intent has not been agreed to 10
by its shareholder within 2 months from the day on which the corporation 11
becomes a corporatised corporation ("the time"), the last draft statement of 12
corporate intent is taken to be the corporation's statement of corporate intent 13
until a draft statement of corporate intent becomes the corporation's 14
statement of corporate intent under section 458HR. 15
`(2) If the shareholder of a corporatised corporation has not agreed to a 16
draft statement of corporate intent, other than the first statement of corporate 17
intent, by 1 July in a year (also "the time"), the last draft statement of 18
corporate intent is taken to be the corporation's statement of corporate intent 19
until a draft statement of corporate intent becomes the corporation's 20
statement of corporate intent under section 458HR. 21
`(3) In this section-- 22
"last draft statement of corporate intent", before the time, means the 23
draft statement of corporate intent submitted, or last submitted, by the 24
board to the shareholder (with any changes by the board, whether 25
before or after the time, at the direction of the shareholder). 26
to statement of corporate intent 27
`Changes
`458HT.(1) A corporatised corporation's statement of corporate intent 28
may be changed by its board with the agreement of its shareholder. 29
`(2) The shareholder may, by written notice, direct the board to change 30
s 39 94 s 39
Local Government Legislation Amendment
the statement of corporate intent. 1
`(3) Before giving the direction, the shareholder must consult with the 2
board and take its views into account. 3
`(4) A copy of the direction must be open to inspection. 4
of corporate intent open to inspection 5
`Statement
`458HU.(1) Subject to section 458HN, a copy of a corporatised 6
corporation's statement of corporate intent must be open to inspection at the 7
local government's public office. 8
`(2) A copy of the statement of corporate intent may be purchased at the 9
local government's public office. 10
`(3) The price of a copy of the statement of corporate intent must be no 11
more than the cost to the local government of having the copy available for 12
purchase, and, if the copy is posted to the purchaser, the postage cost. 13
`(4) The LGOC must give to the chief executive officer of the local 14
government a copy of the current statement of corporate intent of each of its 15
subsidiaries. 16
`Subdivision 12--Community service obligations 17
of "community service obligations" 18
`Meaning
`458I.(1) The "community service obligations" of a corporatised 19
corporation are obligations to do anything that the corporation's board 20
establishes to the satisfaction of the shareholder-- 21
(a) are not in the commercial interests of the corporation to do; and 22
(b) arise because of a direction by the corporation's local government 23
to its LGOC; and 24
(c) do not arise because of the application of the following key 25
principles of corporatisation and their elements-- 26
(i) principle 3--strict accountability for performance; 27
(ii) principle 4--competitive neutrality. 28
s 39 95 s 39
Local Government Legislation Amendment
`(2) This section applies to the following directions and duties-- 1
(a) directions given to the LGOC's board under section 458HD or 2
458HG;34 3
(b) a direction given to the corporatised corporation's board under 4
section 458HQ, 458HT, 458IB or 458JN;35 5
(c) any duty to carry out activities (including any economic 6
development activities or activities of a regulatory or policy 7
formulation nature) arising under an Act applying specifically to 8
the corporatised corporation or corporatised corporations 9
generally. 10
service obligations to be stated in statement of corporate 11
`Community
intent 12
`458IA.(1) The community service obligations that a corporatised 13
corporation is to do are to be stated in its statement of corporate intent. 14
`(2) The costings of, funding for, or other arrangements to make 15
adjustments relating to, the corporation's community service obligations are 16
also to be stated in its statement of corporate intent. 17
`(3) A corporatised corporation's statement of corporate intent is 18
conclusive, as between the corporation and its shareholder, of-- 19
(a) the nature and extent of the community service obligations of the 20
corporation; and 21
(b) the ways in which, and the extent to which, the corporation is to 22
be compensated by the shareholder for the community service 23
obligations. 24
34 Section 458HD (Changes to corporate plan) or 458HG (Special procedures in
relation to draft corporate plan)
35 Section 458HQ (Special procedures in relation to draft statement of corporate
intent), 458HT (Changes of statement of corporate intent), 458IB (Reserve
power of shareholder to give directions to LGOC in public interest) or 458JN
(Reserve power of shareholder to direct that asset not be disposed of)
s 39 96 s 39
Local Government Legislation Amendment
`Subdivision 13--General reserve powers of shareholder 1
power of shareholder to give directions to LGOC in public 2
`Reserve
interest 3
`458IB.(1) An LGOC's shareholder may, by resolution, give the 4
LGOC's board a written direction in relation to the LGOC and its 5
subsidiaries if the shareholder is satisfied, because of exceptional 6
circumstances, it is necessary to give the direction in the public interest. 7
`(2) The board must ensure the direction is complied with by the LGOC. 8
`(3) If the direction concerns the LGOC's subsidiary, the LGOC board 9
must, to the extent the direction concerns the subsidiary-- 10
(a) notify the subsidiary of the direction; and 11
(b) ensure the direction is complied with by the subsidiary. 12
`(4) The subsidiary's board must ensure that a direction of which it has 13
been notified is complied with in relation to the subsidiary to the extent that 14
the direction concerns the subsidiary. 15
`(5) Before giving the direction, the shareholder must-- 16
(a) consult with the LGOC; and 17
(b) ask the board to advise it whether, in its opinion, complying with 18
the direction would not be in the commercial interests of the 19
LGOC or any of its subsidiaries. 20
`(6) A copy of the direction must be open to inspection. 21
`Subdivision 14--Suspected insolvency from directions 22
of suspected insolvency because of direction 23
`Notice
`458IC.(1) This section applies if-- 24
(a) a corporatised corporation's board is given a direction by its 25
shareholder; and 26
(b) the board suspects the corporation, or, for an LGOC, its 27
subsidiary, will or may become insolvent; and 28
s 39 97 s 39
Local Government Legislation Amendment
(c) in the board's opinion, the cause or a substantial cause of the 1
suspected insolvency would be compliance with the direction. 2
`(2) The board must immediately give written notice to the shareholder, 3
the auditor-general and, if the corporation is a subsidiary, its local 4
government of-- 5
(a) the suspicion; and 6
(b) its reasons for the opinion. 7
`(3) The notice must state that it is given under this section. 8
`(4) The giving of the notice operates to suspend the direction until-- 9
(a) the shareholder advises the board, in writing, that the shareholder 10
is not satisfied-- 11
(i) the board's suspicion mentioned in subsection (1)(b) is 12
well-founded; or 13
(ii) the board's opinion mentioned in subsection (1)(c) is 14
justified; or 15
(b) the direction is revoked. 16
`(5) If the shareholder is satisfied the board's suspicion is well-founded, 17
the shareholder must immediately-- 18
(a) if also satisfied the board's opinion is justified--revoke the 19
direction; and 20
(b) in any case--give the board the written directions the shareholder 21
considers necessary or desirable, including any directions 22
necessary or desirable to ensure-- 23
(i) the corporation or, for an LGOC, its subsidiary does not 24
incur further debts; or 25
(ii) the LGOC or its subsidiary will be able to pay all its debts as 26
and when they become due. 27
`(6) Without limiting subsection (5), a direction under this section may 28
require an LGOC or any of its subsidiaries to stop or limit particular 29
activities. 30
`(7) If the shareholder is a local government, a direction under 31
subsection (5) must be by resolution of the local government. 32
s 39 98 s 39
Local Government Legislation Amendment
`(8) The board of the corporatised corporation must ensure a direction 1
under this section is complied with by the corporation. 2
`(9) If the direction to an LGOC's board concerns the LGOC's 3
subsidiary, the LGOC board must, to the extent the direction concerns the 4
subsidiary-- 5
(a) notify the subsidiary of the direction; and 6
(b) ensure the direction is complied with by the subsidiary. 7
`(10) The subsidiary's board must ensure that a direction of which it has 8
been notified is complied with in relation to the subsidiary to the extent that 9
the direction concerns the subsidiary. 10
`(11) A copy of the direction by a local government must be open to 11
inspection. 12
`(12) This section is in addition to, and does not limit, another provision 13
of this part or another law. 14
`(13) The shareholder must give the auditor-general a copy of every 15
advice or direction given under this section to the board. 16
15--Limitation on local government directions 17
`Subdivision
corporation and board not otherwise subject to local 18
`Corporatised
government direction 19
`458ID. Except as otherwise provided by this or another Act, a 20
corporatised corporation and its board are not subject to direction by or on 21
behalf of its local government under this part. 22
`Subdivision 16--Reports and other accountability matters 23
of Financial Administration and Audit Act 24
`Application
`458IE.(1) The provisions of the Financial Administration and Audit Act 25
1977 that apply to local governments ("the provisions") apply to a 26
corporatised corporation with any changes prescribed by regulation. 27
`(2) A regulation made under subsection (1)-- 28
s 39 99 s 39
Local Government Legislation Amendment
(a) expires 6 months after its notification in the gazette unless it is 1
earlier repealed or its operation is extended under a regulation; and 2
(b) cannot operate after 1 year after its notification in the gazette. 3
`(3) For the purposes of the provisions, a corporatised corporation is a 4
controlled entity. 5
`(4) The provisions apply to a corporatised corporation as if a reference 6
in the Act to the appropriate Minister were a reference to the local 7
government. 8
reports 9
`Quarterly
`458IF.(1) A corporatised corporation's board must give to its 10
shareholder a report on the corporation's operations including, for an 11
LGOC, its subsidiaries for each of the first 3 quarters of a financial year. 12
`(2) A quarterly report must be given to-- 13
(a) for an LGOC if there are shareholder's delegates--the 14
shareholder's delegates; and 15
(b) for corporatised corporations to which paragraph (a) does not 16
apply--the shareholder. 17
`(3) A quarterly report must be given-- 18
(a) within 1 month after the end of the quarter; or 19
(b) if another period after the end of the quarter is agreed between the 20
board and the shareholder--within the agreed period. 21
`(4) A quarterly report must include the information required to be given 22
in the report by the corporation's statement of corporate intent. 23
s 39 100 s 39
Local Government Legislation Amendment
`(5) For section 198(2)(a), a quarterly report of an LGOC is information 1
that is confidential to the LGOC's local government.36 2
reports 3
`Annual
`458IG.(1) A corporatised corporation's board must give to its 4
shareholder an annual report on the corporation's operations including, for 5
an LGOC, its subsidiaries for each financial year. 6
`(2) The annual report must be given to the shareholder-- 7
(a) within 4 months after the end of the financial year; or 8
(b) if another period after the end of the financial year is agreed 9
between the board and the shareholder--within the agreed period. 10
`(3) The annual report37 must-- 11
(a) contain the information that is required to be included in the report 12
by its shareholder to enable an informed assessment to be made 13
of the corporation's operations, including for an LGOC, the 14
operations of its subsidiaries and including a comparison of the 15
performance of the corporation with its statement of corporate 16
intent; and 17
(b) state the corporation's dividend policy for the financial year to 18
which the report relates; and 19
(c) include the statement of corporate intent for the relevant financial 20
year; and 21
(d) include particulars of any changes made to the statement of 22
corporate intent during the relevant financial year; and 23
(e) include particulars of any directions given to the board by the 24
36 Section 198 (Improper use of information by councillors)
37 Under section 458II certain material may be deleted from the report.
s 39 101 s 39
Local Government Legislation Amendment
shareholder relating to the relevant financial year;38 and 1
(f) include particulars of the impact on the financial position, profits 2
and losses and prospects of the corporation, including, for an 3
LGOC, its subsidiaries of any changes to the statement of 4
corporate intent, and any directions given to the board by the 5
shareholder, relating to the relevant financial year. 6
`(4) The annual report must also state whether or not, in the directors' 7
opinion, there are, when the statement is made, reasonable grounds to 8
believe the corporation will be able to pay its debts as and when they fall 9
due. 10
`(5) This section does not limit the matters required to be included in, or 11
to accompany, a corporation's annual report under another Act or law. 12
report open to inspection 13
`Annual
`458IH.(1) A copy of an LGOC's annual report must be open to 14
inspection at the local government's public office. 15
`(2) A copy of the report may be purchased at the local government's 16
public office. 17
38 An LGOC's shareholder may give directions to the board of an LGOC under--
· section 458HD (Special procedures in relation to draft corporate plan)
· section 458HG (Changes to corporate plan)
· section 458HQ (Draft statement of corporate intent)
· section 458HT (Changes to statement of corporate intent)
· section 458IB (Reserve power of shareholder to give directions to LGOC
in public interest)
· section 458IC (Notice of suspected insolvency because of direction)
· section 458IV (Notice of suspected insolvency otherwise than because of
direction)
· section 458JK (Payment of dividends)
· section 458JL (Interim dividends)
· section 458JN (Reserve power of shareholder to direct that asset not be
disposed of)
s 39 102 s 39
Local Government Legislation Amendment
`(3) The price of a copy of the report must be no more than the cost to 1
the local government of having a copy available for purchase, and, if the 2
copy is posted to the purchaser, the postage cost. 3
of certain matters from annual report etc. 4
`Omission
`458II.(1) A matter required to be included in the annual report of an 5
LGOC for a financial year may be omitted from the copies of the annual 6
report (and accompanying documents) to be made public if-- 7
(a) the matter is of a commercially sensitive nature to the LGOC or 8
its subsidiary; and 9
(b) a full statement of the matter is given-- 10
(i) if there are shareholder's delegates39--to the delegates; or 11
(ii) if there are no shareholder's delegates--to each councillor of 12
the shareholder. 13
`(2) For section 198(2)(a), a full statement of the matter given to 14
shareholder's delegates or councillors under subsection (1)(b), is 15
information that is confidential to the LGOC's local government.40 16
`(3) An annual report of an LGOC may include a summary of a matter 17
required to be included in the annual report, rather than a full statement of 18
the matter, if-- 19
(a) the summary indicates it is a summary only; and 20
(b) a full statement of the matter is given to the local government 21
when the annual report is given to the shareholder. 22
`(4) Subsections (1) to (3) have effect despite section 458IG or another 23
Act or law. 24
`(5) Subsection (1) has effect despite subsection (3). 25
39 Section 458GM (Appointment of councillors as shareholder's delegates) provides
for appointment of shareholder's delegates.
40 Section 198 (Improper use of information by councillors)
s 39 103 s 39
Local Government Legislation Amendment
board to keep shareholder informed 1
`LGOC
`458IJ.(1) An LGOC's board must-- 2
(a) keep its shareholder reasonably informed of the operations, 3
financial performance and financial position of the LGOC and its 4
subsidiaries, including the assets and liabilities, profits and losses 5
and prospects of the LGOC and its subsidiaries; and 6
(b) give to the shareholder reports and information that the 7
shareholder requires to enable the shareholder to-- 8
(i) make informed assessments of matters mentioned in 9
paragraph (a); or 10
(ii) comply with reporting requirements on the shareholder 11
under an Act; and 12
(c) if matters arise that, in the board's opinion, may prevent or 13
significantly affect achievement of the LGOC's objectives or 14
targets in its statement of corporate intent--immediately inform 15
the shareholder of the matters and its opinion in relation to them. 16
`(2) However, a matter that is of a commercially sensitive nature to an 17
LGOC or its subsidiary may be omitted from information given by the 18
LGOC under subsection (1) if a full statement of the matter is given-- 19
(a) if there are shareholder's delegates--to the delegates; or 20
(b) if there are no shareholder's delegates--to each councillor of the 21
shareholder. 22
`(3) For section 198(2)(a), a full statement of the matter given to 23
shareholder's delegates or councillors under subsection (2) is information 24
that is confidential to the LGOC's local government.41 25
`(4) Subsection (1) does not limit the matters of which the board is 26
required to keep the shareholder informed, or limit the reports or 27
information the board is required, or may be required, to give to the 28
shareholder, under another Act or law. 29
`(5) If there are shareholder's delegates for the LGOC, the reports and 30
41 Section 198 (Improper use of information by councillors)
s 39 104 s 39
Local Government Legislation Amendment
information under subsection (1) must be given to the shareholder's 1
delegates on behalf of the local government. 2
`Subdivision 17--Duties and liabilities of directors and other officers 3
of interests by directors 4
`Disclosure
`458IK.(1) If a corporatised corporation's director has a direct or indirect 5
interest in a matter being considered, or about to be considered, by the 6
board, the director must disclose the nature of the interest to a meeting of 7
the board as soon as practicable after the relevant facts come to the 8
director's knowledge. 9
Maximum penalty--100 penalty units. 10
`(2) The disclosure must be recorded in the board's minutes. 11
by interested director 12
`Voting
`458IL.(1) A corporatised corporation's director who has a material 13
personal interest in a matter being considered by the board must not-- 14
(a) vote on the matter; or 15
(b) vote on a proposed resolution (a "related resolution") under 16
subsection (2) in relation to the matter (whether in relation to the 17
director or another director); or 18
(c) be present while the matter, or a related resolution, is being 19
considered by the board; or 20
(d) otherwise take part in any decision of the board in relation to the 21
matter or a related resolution. 22
Maximum penalty--100 penalty units. 23
`(2) Subsection (1) does not apply to the matter if the board has, at any 24
time, passed a resolution that-- 25
(a) states the director, the interest and the matter; and 26
(b) states that the directors voting for the resolution are satisfied the 27
interest should not disqualify the director from considering or 28
voting on the matter. 29
s 39 105 s 39
Local Government Legislation Amendment
`(3) A quorum is present during a consideration of a matter by the board 1
only if at least 2 directors are present who are entitled to vote on any motion 2
that may be moved in relation to the matter. 3
`(4) The corporation's shareholder or the shareholder's delegate may, by 4
signing consent to a proposed resolution, deal with a matter if the board 5
cannot deal with it because of subsection (3). 6
and liability of certain officers of corporatised corporation 7
`Duty
`458IM.(1) An officer of a corporatised corporation must act honestly in 8
the exercise of powers, and discharge of functions, as an officer of the 9
corporatised corporation. 10
Maximum penalty-- 11
(a) if the contravention is committed with intent to deceive or defraud 12
the corporatised corporation, creditors of the corporation or 13
creditors of another person or for another fraudulent 14
purpose--500 penalty units or 5 year's imprisonment; or 15
(b) in any other case--100 penalty units. 16
`(2) In the exercise of powers and the discharge of functions, an officer 17
of a corporatised corporation must exercise the degree of care and diligence 18
that a reasonable person in a like position in a corporatised corporation 19
would exercise in the corporation's circumstances. 20
Maximum penalty--100 penalty units. 21
`(3) An officer of a corporatised corporation, or a person who has been 22
an officer of a corporatised corporation, must not make improper use of 23
information acquired as an officer of the corporatised corporation-- 24
(a) to gain, directly or indirectly, an advantage for himself or herself 25
or for another person; or 26
(b) to cause detriment to the corporation. 27
Maximum penalty--500 penalty units or 5 year's imprisonment. 28
`(4) An officer of a corporatised corporation must not make improper 29
use of the officer's position as an officer of the corporatised corporation-- 30
(a) to gain, directly or indirectly, an advantage for himself or herself 31
or for another person; or 32
s 39 106 s 39
Local Government Legislation Amendment
(b) to cause detriment to the corporation. 1
Maximum penalty--500 penalty units or 5 year's imprisonment. 2
`(5) If a person contravenes this section in relation to a corporatised 3
corporation, the corporation may recover from the person as a debt due to 4
the corporation-- 5
(a) if anyone made a profit because of the contravention--an amount 6
equal to the profit; and 7
(b) if the corporation suffered loss or damage because of the 8
contravention--an amount equal to the loss or damage. 9
`(6) An amount may be recovered from the person under subsection (5) 10
whether or not the person has been convicted of an offence in relation to the 11
contravention. 12
`(7) Subsection (5) is in addition to, and does not limit, the Crimes 13
(Confiscation of Profits) Act 1989. 14
`(8) In determining for the purposes of subsection (2) the degree of care 15
and diligence that a reasonable person in a like position in a corporatised 16
corporation would exercise in the circumstances of the corporatised 17
corporation concerned, regard must be had to-- 18
(a) the fact that the person is an officer of the corporatised 19
corporation; and 20
(b) the application of this part to the corporation; and 21
(c) relevant matters required or permitted to be done under this part 22
in relation to the corporation; 23
including, for example-- 24
(d) any relevant community service obligations of the corporation; 25
and 26
(e) any relevant directions or approvals given to the corporation by its 27
shareholder. 28
`(9) Subsection (8) does not limit the matters to which regard may be 29
had for subsection (2). 30
`(10) This section-- 31
(a) is in addition to, and does not limit, any rule of law relating to the 32
s 39 107 s 39
Local Government Legislation Amendment
duty or liability of a person because of the person's office in 1
relation to a corporation; and 2
(b) does not prevent civil proceedings being started for a breach of 3
the duty or the liability. 4
on loans to directors 5
`Prohibition
`458IN.(1) A corporatised corporation must not, whether directly or 6
indirectly-- 7
(a) make a loan to a director, a spouse of a director or a relative of 8
either of them; or 9
(b) give a guarantee or provide security in connection with a loan 10
made to a director, a spouse of a director or a relative of either of 11
them. 12
`(2) Subsection (1) does not apply to the entering into by the corporation 13
of an instrument with a person mentioned in subsection (1) if the 14
instrument is entered into on the same terms as similar instruments are 15
entered into by the corporation with members of the public. 16
`(3) A director of a corporatised corporation who is knowingly 17
concerned in a contravention of subsection (1) by the corporation (whether 18
or not in relation to the director) commits an offence. 19
Maximum penalty--100 penalty units. 20
`(4) In this section-- 21
"relative" means-- 22
(a) a parent or remoter lineal ancestor; or 23
(b) a son, daughter or remoter issue; or 24
(c) a brother or sister. 25
corporatised corporation not to indemnify officers 26
`When
`458IO.(1) A corporatised corporation must not-- 27
(a) indemnify a person who is or has been an officer of the 28
corporation against a liability incurred as an officer; or 29
s 39 108 s 39
Local Government Legislation Amendment
(b) exempt a person who is or has been an officer of the corporation 1
from a liability incurred as an officer. 2
`(2) An instrument is void so far as it provides for the corporation to do 3
something that subsection (1) prohibits. 4
`(3) Subsection (1) does not prevent the corporation from indemnifying a 5
person against a civil liability (other than a liability to the corporation or a 6
subsidiary of the corporation) unless the liability arises out of conduct 7
involving a lack of good faith. 8
`(4) Subsection (1) does not prevent the corporation from indemnifying a 9
person against a liability for costs and expenses incurred by the person-- 10
(a) in defending a proceeding, whether civil or criminal, in which 11
judgment is given in favour of the person or in which the person 12
is acquitted; or 13
(b) in connection with an application in relation to a proceeding in 14
which relief is granted to the person by a court. 15
`(5) The corporation may give an indemnity mentioned in subsection (3) 16
or (4) only with the prior approval of its shareholder. 17
`(6) In this section-- 18
"indemnify" includes indemnify indirectly through 1 or more interposed 19
entities. 20
corporation not to pay premiums for certain liabilities 21
`Corporatised
of officers 22
`458IP.(1) A corporatised corporation must not pay, or agree to pay, a 23
premium in relation to a contract insuring a person who is or has been an 24
officer of the corporation against a liability-- 25
(a) incurred by the person as an officer; and 26
(b) arising out of conduct involving-- 27
(i) a wilful breach of duty in relation to the corporation; or 28
(ii) without limiting subparagraph (i), a contravention of 29
section 458IM (3) or (4). 30
`(2) Subsection (1) does not apply to a liability for costs and expenses 31
s 39 109 s 39
Local Government Legislation Amendment
incurred by a person in defending proceedings, whether civil or criminal, 1
and whatever their outcome. 2
`(3) An instrument is void so far as it insures a person against a liability 3
in contravention of subsection (1). 4
`(4) In this section-- 5
"pay" includes pay indirectly through 1 or more interposed entities. 6
duty to prevent insolvent trading 7
`Director's
`458IQ.(1) If-- 8
(a) immediately before a corporatised corporation incurs a debt-- 9
(i) there are reasonable grounds to suspect that the corporation 10
will not be able to pay all its debts as and when they become 11
payable; or 12
(ii) there are reasonable grounds to suspect that, if the 13
corporation incurs the debt, it will not be able to pay all its 14
debts as and when they become payable; and 15
(b) the corporation is, or later becomes, unable to pay all its debts as 16
and when they become payable; 17
a person who is a director of the corporation, or takes part in the 18
corporation's management, at the time when the debt is incurred commits 19
an offence. 20
Maximum penalty--100 penalty units or 1 year's imprisonment. 21
`(2) In a proceeding against a person for an offence against this section, it 22
is a defence if it is proved-- 23
(a) that the debt was incurred without the person's express or implied 24
authority or consent; or 25
(b) that, at the time when the debt was incurred, the person did not 26
have reasonable cause to suspect-- 27
(i) that the corporation would not be able to pay all its debts as 28
and when they became payable; or 29
(ii) that, if the corporation incurred that debt, it would not be able 30
to pay all its debts as and when they became payable; or 31
s 39 110 s 39
Local Government Legislation Amendment
(c) that the person took all reasonable steps to prevent the corporation 1
from incurring the debt; or 2
(d) for a director--that the person did not take part at the time in the 3
corporation's management because of illness or for some other 4
good cause. 5
may order compensation 6
`Court
`458IR.(1) If a person is found guilty of an offence against 7
section 458IQ in relation to the incurring of a debt by a corporatised 8
corporation, the Supreme Court or a District Court may declare that the 9
person is to be personally responsible without any limitation of liability for 10
the payment to the corporation of the amount required to satisfy the part of 11
the corporation's debts that the court considers proper. 12
`(2) This section does not affect any rights of a person to indemnity, 13
subrogation or contribution. 14
`(3) This section-- 15
(a) is in addition to, and does not limit, any rule of law about the duty 16
or liability of a person because of the person's office in relation to 17
a corporation; and 18
(b) does not prevent proceedings being instituted for a breach of the 19
duty or the liability. 20
of persons concerned with corporatised corporations 21
`Examination
`458IS.(1) If it appears to the attorney-general or a local government that 22
there are reasonable grounds to believe-- 23
(a) a person who has been concerned, or taken part, in a corporatised 24
corporation's management, administration or affairs has been, or 25
may have been, guilty of fraud, negligence, default, breach of 26
trust or breach of duty or other misconduct in relation to the 27
corporation; or 28
(b) a person may be capable of giving information in relation to a 29
corporatised corporation's management, administration or affairs; 30
the attorney-general or local government may apply to the Supreme Court 31
s 39 111 s 39
Local Government Legislation Amendment
or a District Court for an order under this section in relation to the person. 1
`(2) If the attorney-general makes an application under subsection (1) 2
about a corporatised corporation, the attorney-general must, as soon as 3
practicable, advise the corporation's local government. 4
`(3) A local government may only make an application under 5
subsection (1) in relation to its corporatised corporation and must, as soon 6
as practicable after making an application, advise the attorney-general. 7
`(4) If the court is satisfied it is reasonable and appropriate for the person 8
to be examined the court may order that the person attend before the court at 9
a time and place fixed by the court to be examined on oath on any matters 10
relating to the corporation's management, administration or affairs. 11
`(5) 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
`(6) 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
`(7) 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 2 year's imprisonment. 24
`(8) The person must not fail to take an oath or make an affirmation at 25
the examination. 26
Maximum penalty--200 penalty units or 2 year's imprisonment. 27
`(9) 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 2 year's imprisonment. 30
`(10) 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
s 39 112 s 39
Local Government Legislation Amendment
or under the person's control, relevant to the matters on which the person is 1
to be, or is being, examined. 2
`(11) The person must not, without reasonable excuse, contravene a 3
direction under subsection (8). 4
Maximum penalty--200 penalty units or 2 year's imprisonment. 5
`(12) If the court directs the person to produce a document and the 6
person has a lien on the document, the production of the document does not 7
prejudice the lien. 8
`(13) 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 5 year's imprisonment. 11
`(14) 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
`(15) 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
`(16) The court may order the questions put to the person and the 26
answers given by the person at the examination to be recorded in writing 27
and may require the person to sign the record. 28
`(17) Subject to subsection (15), 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
s 39 113 s 39
Local Government Legislation Amendment
`(18) The person may, at the person's own expense, employ a lawyer, 1
and the lawyer may put to the person questions that the court considers just 2
to enable the person to explain or qualify any answers given by the person. 3
`(19) The court may adjourn the examination from time to time. 4
`(20) The court may order the whole or any part of the costs incurred by 5
the person be paid by-- 6
(a) if the application was made by the attorney-general--the State; or 7
(b) if the application was made by a local government--the local 8
government. 9
to grant relief 10
`Power
`458IT.(1) This section applies to a corporatised corporation's director, 11
chief executive officer or employee. 12
`(2) If, in a proceeding against a person to whom this section applies for 13
negligence, default, breach of trust or breach of duty as a person to whom 14
this section applies, it appears to the court that-- 15
(a) the person is or may be liable for the negligence, default or 16
breach; but 17
(b) the person has acted honestly and, having regard to all the 18
circumstances of the case (including circumstances connected 19
with the person's appointment) the person ought fairly to be 20
excused for the negligence, default or breach; 21
the court may relieve the person (in whole or part) from liability on terms 22
the court considers appropriate. 23
`(3) If a person to whom this section applies believes a claim will or 24
might be made against the person for negligence, default, breach of trust or 25
breach of duty as a person to whom this section applies, the person may 26
apply to the Supreme Court or a District Court for relief. 27
`(4) The court has the same power to relieve the person as it would have 28
if a proceeding had been brought against the person in the court for the 29
negligence, default or breach. 30
`(5) If-- 31
(a) a proceeding mentioned in subsection (2) is being tried by a judge 32
s 39 114 s 39
Local Government Legislation Amendment
with a jury; and 1
(b) the judge, after hearing the evidence, is satisfied that the defendant 2
ought under that subsection be relieved (in whole or part) from 3
the liability sought to be enforced against the person; 4
the judge may withdraw the case (in whole or part) from the jury and direct 5
that judgment be entered for the defendant on the terms (as to costs or 6
otherwise) the judge considers appropriate. 7
or misleading information or documents 8
`False
`458IU.(1) An officer of a corporatised corporation must not-- 9
(a) make a statement concerning the affairs of the corporation to 10
another officer or the corporation's shareholder that the first 11
officer knows is false or misleading in a material particular; or 12
(b) omit from a statement concerning the corporation's affairs made 13
to another officer or the corporation's shareholder anything 14
without which the statement is, to the first officer's knowledge, 15
misleading in a material particular. 16
`(2) A complaint against a person for an offence against subsection (1)(a) 17
or (b) is sufficient if it states that the information given was false or 18
misleading to the person's knowledge. 19
`(3) An officer of a corporatised corporation must not give to an officer, 20
the corporation's shareholder, a director, officer or employee of the 21
shareholder, the corporation's local government or a councillor of the 22
corporation's local government a document containing information that the 23
first officer knows is false, misleading or incomplete in a material particular 24
without-- 25
(a) indicating to the recipient that the document is false, misleading or 26
incomplete and the respect in which the document is false, 27
misleading or incomplete; and 28
(b) giving the correct information to the recipient if the first officer 29
has, or can reasonably obtain, the correct information. 30
Maximum penalty for subsections (1) and (3)-- 31
(a) if the contravention is committed with intent to deceive or defraud 32
s 39 115 s 39
Local Government Legislation Amendment
the corporatised corporation, creditors of the corporation or 1
creditors of another person or for another fraudulent 2
purpose--500 penalty units or 5 year's imprisonment; or 3
(b) in any other case--100 penalty units. 4
of suspected insolvency otherwise than because of direction 5
`Notice
`458IV.(1) This section applies if-- 6
(a) a corporatised corporation's board suspects that the corporation 7
or, for an LGOC, its subsidiary is, may be, will or may become 8
insolvent; and 9
(b) in the board's opinion, compliance with a direction given by the 10
shareholder is not or would not be the cause or a substantial cause 11
of the suspected insolvency. 12
`(2) The board must immediately give written notice to the corporation's 13
shareholder and the auditor-general and, if the corporation is a subsidiary, to 14
its local government of-- 15
(a) the suspicion; and 16
(b) its reasons for the opinion. 17
`(3) The notice must state that it is given under this section. 18
`(4) If the shareholder is satisfied that the board's suspicion is well- 19
founded, the shareholder must immediately give the board the written 20
directions that the shareholder considers necessary or desirable, including 21
any directions necessary or desirable to ensure-- 22
(a) the corporation or subsidiary does not incur further debts; or 23
(b) the corporation or subsidiary will be able to pay all its debts as 24
and when they become due. 25
`(5) Without limiting subsection (4), a direction under this section may 26
require the corporation or, for an LGOC, any of its subsidiaries to cease or 27
limit particular activities. 28
`(6) If the shareholder is a local government, a direction under 29
subsection (4) must be by resolution of the local government. 30
`(7) The board must ensure a direction under this section is complied 31
s 39 116 s 39
Local Government Legislation Amendment
with by the corporation. 1
`(8) If the direction to an LGOC's board concerns the LGOC's 2
subsidiary, the LGOC's board must, to the extent the direction concerns the 3
subsidiary-- 4
(a) notify the subsidiary of the direction; and 5
(b) ensure the direction is complied with by the subsidiary. 6
`(9) The subsidiary's board must ensure that a direction of which it has 7
been notified is complied with in relation to the subsidiary to the extent that 8
the direction concerns the subsidiary. 9
`(10) A copy of the direction by a local government must be open to 10
inspection. 11
`(11) This section is in addition to, and does not limit, another provision 12
of this part or another law. 13
`(12) This section has effect despite the Corporations Law. 14
`(13) The shareholder must give the auditor-general a copy of every 15
advice or direction given under this section to the board. 16
`Subdivision 18--Legal capacity and powers 17
of subdivision 18
`Objects
`458J. The objects of this subdivision include-- 19
(a) abolishing any application of the doctrine of ultra vires to 20
corporatised corporations; and 21
(b) ensuring corporatised corporations give effect to any restrictions 22
on their objects or powers, but without affecting the validity of 23
their dealings with others. 24
powers of corporatised corporations 25
`General
`458JA.(1) A corporatised corporation has, for or in connection with the 26
performance of its functions, all the powers of a natural person, including, 27
for example, the power to-- 28
s 39 117 s 39
Local Government Legislation Amendment
(a) enter into contracts; and 1
(b) acquire, hold, dispose of and deal with property; and 2
(c) appoint agents and attorneys; and 3
(d) charge, and fix terms, for goods, services and information 4
supplied by it; and 5
(e) engage consultants; and 6
(f) do all other things necessary or convenient to be done for, or in 7
connection with, the performance of its functions. 8
`(2) Without limiting subsection (1), the corporatised corporation has the 9
powers that are conferred on it by this or another Act. 10
`(3) The corporatised corporation may exercise its powers inside and 11
outside Queensland. 12
`(4) Without limiting subsection (3), the corporatised corporation may 13
exercise its powers in a foreign country. 14
`(5) The fact that the doing of an act by the corporatised corporation 15
would not be, or is not, in its best interests does not affect its power to do 16
the act. 17
`(6) In this section-- 18
"power" includes legal capacity. 19
on powers of corporatised corporations 20
`Restrictions
`458JB.(1) Section 458JA has effect in relation to a corporatised 21
corporation subject to any restrictions on the corporation's powers 22
expressly imposed under this or another Act. 23
`(2) Section 458JA also has effect in relation to the corporatised 24
corporation subject to any restrictions expressly imposed by-- 25
(a) any relevant statement of corporate intent of the corporation; and 26
(b) any relevant directions or approvals given to the corporation by 27
the corporation's shareholder. 28
`(3) A corporatised corporation must not-- 29
(a) exercise a power contrary to a restriction mentioned in 30
s 39 118 s 39
Local Government Legislation Amendment
subsection (1) or (2); or 1
(b) do an act otherwise than in pursuance of the corporation's objects 2
or functions. 3
`(4) The exercise of a power or the doing of an act is not invalid merely 4
because-- 5
(a) the power is exercised in contravention of subsection (3)(a); or 6
(b) the act is done in contravention of subsection (3)(b). 7
`(5) An officer of the corporatised corporation who is involved in the 8
contravention contravenes this subsection. 9
`(6) An act of the officer is not invalid merely because, by doing the act, 10
the officer contravenes subsection (5). 11
`(7) The corporatised corporation or officer of the corporation is not 12
guilty of an offence merely because of the relevant contravention. 13
`(8) The fact that-- 14
(a) by exercising the powers mentioned in subsection (3)(a), or doing 15
the act as mentioned in subsection (3)(b), the corporatised 16
corporation contravened, or would contravene, subsection (3); or 17
(b) by doing a particular act, an officer of the corporation 18
contravened, or would contravene, subsection (5); 19
may be asserted or relied on only in proceedings between the corporation 20
and officers of the corporation. 21
`(9) In this section-- 22
"restriction" includes prohibition. 23
having dealings with corporatised corporations etc. 24
`Persons
`458JC.(1) A person having dealings with a corporatised corporation is 25
entitled to make the assumptions mentioned in subsection (4) and, in a 26
proceeding in relation to the dealings, any assertion by the corporation that 27
the matters that the person is entitled to assume were not correct must be 28
disregarded. 29
`(2) A person (the "first person") having dealings with a person (the 30
"second person") who has acquired, or purports to have acquired, title to 31
s 39 119 s 39
Local Government Legislation Amendment
property from a corporatised corporation (whether directly or indirectly) is 1
entitled to make the assumptions mentioned in subsection (4). 2
`(3) In a proceeding in relation to the dealings mentioned in 3
subsection (2), any assertion by the corporation or the second person that 4
the matters that the first person is entitled to assume were not correct must 5
be disregarded. 6
`(4) The assumptions that a person is, because of subsections (1) to (3), 7
entitled to make are-- 8
(a) that, at all relevant times, this part has been complied with; and 9
(b) that a person who is held out by the corporation to be an officer or 10
agent of the corporation has been properly appointed and has 11
authority to exercise the powers and perform the functions 12
customarily exercised or performed by an officer or agent of the 13
kind concerned; and 14
(c) that an officer or agent of the corporation who has authority to 15
issue a document on behalf of the corporation has authority to 16
warrant that the document is genuine and that an officer or agent 17
of the corporation who has authority to issue a certified copy of a 18
document on behalf of the corporation has authority to warrant 19
that the copy is a true copy; and 20
(d) that a document has been properly sealed by the corporation if-- 21
(i) it bears what appears to be an imprint of the corporation's 22
seal; and 23
(ii) the sealing of the document appears to be authenticated by a 24
person who, because of paragraph (b), may be assumed to 25
be a director of the corporation or the corporation's chief 26
executive officer; and 27
(e) that the corporation's directors, chief executive officer, employees 28
and agents have properly performed their duties to the 29
corporation. 30
`(5) However, a person is not entitled to assume a matter mentioned in 31
subsection (4) if-- 32
(a) the person has actual knowledge the assumption would be 33
incorrect; or 34
s 39 120 s 39
Local Government Legislation Amendment
(b) because of the person's connection or relationship with the 1
corporation, the person ought to know the assumption would be 2
incorrect. 3
`(6) If, because of subsection (5), a person is not entitled to make a 4
particular assumption-- 5
(a) if the assumption is in relation to dealings with the 6
corporation--subsection (1) does not apply to any assertion by 7
the corporation in relation to the assumption; or 8
(b) if the assumption is in relation to an acquisition or purported 9
acquisition from the corporation of title to 10
property--subsections (2) and (3) do not apply to any assertion 11
by the corporation or another person in relation to the assumption. 12
may direct subsidiary 13
`LGOC
`458JD.(1) An LGOC may give written directions to a subsidiary of the 14
LGOC-- 15
(a) to ensure the subsidiary complies with, and gives effect to the 16
purposes of, this part; and 17
(b) about the payment of amounts to allow the LGOC to make 18
payments under sections 458JK and 458JL.42 19
`(2) An LGOC's local government may, by resolution, provide for an 20
LGOC to give directions to a subsidiary about anything else. 21
must comply with directions 22
`Subsidiaries
`458JE. A subsidiary must comply with a direction given to it under 23
section 458JD. 24
458JD and 458JE not limiting 25
`Sections
`458JF. Sections 458JD and 458JE do not, by implication, limit the 26
powers that an LGOC otherwise has to direct a subsidiary. 27
42 Section 458JK (Payment of dividends) and 458JL (Interim dividends)
s 39 121 s 39
Local Government Legislation Amendment
19--Finance--taxation 1
`Subdivision
taxes 2
`State
`458JG.(1) A corporatised corporation is not liable to pay State taxes in 3
relation to any matter, instrument, transaction or thing greater than the State 4
taxes that it would have been liable to pay in relation to the matter, 5
instrument, transaction or thing if the corporation were a local government. 6
7
Examples for subsection (1)--
8
1. If the local government is liable to pay payroll tax in relation to the payroll for
9
employees, an LGOC would also be liable to pay the tax.
10
2. If as a local government, stamp duty is not payable on a transaction, the LGOC
11
is not liable to pay that duty.
`(2) State tax is not payable in relation to anything done (including, for 12
example, a transaction entered into or an instrument made, executed, lodged 13
or given) because of, or for a purpose connected with or arising out of, 14
division 2 or subdivision 3 of this division.43 15
`(3) So far as the legislative power of the Parliament permits, the 16
reference in subsection (2) to State tax includes a reference to tax imposed 17
under an Act of another State. 18
and State tax equivalents 19
`Commonwealth
`458JH.(1) The Treasurer may issue a manual (the "tax equivalents 20
manual") about deciding the amounts ("tax equivalents") to be paid by a 21
corporatised corporation to its local government as the value of benefits 22
derived by the corporation because it is not liable to pay Commonwealth or 23
State tax that would be payable if it were neither a corporatised corporation 24
nor a local government. 25
`(2) Without limiting subsection (1), the tax equivalents manual may 26
provide for-- 27
(a) rulings by the tax assessor appointed under subsection (3) on 28
43 Division 2 (Mechanisms for creating LGOCs and subsidiaries) and division 3
(Local government owned corporations and subsidiaries), subdivision 3 (Shares
of corporatised corporations)
s 39 122 s 39
Local Government Legislation Amendment
issues about tax equivalents, including the application of rulings 1
under a Commonwealth Act about Commonwealth tax; and 2
(b) the lodging of returns and giving of information by corporatised 3
corporations; and 4
(c) assessing returns; and 5
(d) the functions and powers of the tax assessor; and 6
(e) objections and appeals against assessments and rulings. 7
`(3) The Treasurer may appoint a person to be the tax assessor under the 8
tax equivalents manual. 9
`(4) A corporatised corporation must, as required under the tax 10
equivalents manual, pay tax equivalents to its local government. 11
`(5) The Treasurer must table a copy of the tax equivalents manual, and 12
each amendment of the manual, in the Legislative Assembly within 13
14 sitting days after the manual is issued or the amendment made. 14
`Subdivision 20--Finance--borrowings and guarantees 15
by local government 16
`Guarantees
`458JI. A local government is liable for the debts and other liabilities of 17
its corporatised corporations only if, and to the extent that, the liability is 18
expressly and lawfully undertaken on behalf of the local government. 19
for cost of funds advantage of guarantees by local 20
`Payment
government 21
`458JJ. If the State or a local government guarantees repayment by a 22
corporatised corporation of its debt, the corporation must pay to its local 23
government amounts equivalent to the cost of funds advantage over 24
commercial rates of interests. 25
s 39 123 s 39
Local Government Legislation Amendment
21--Finance--dividends 1
`Subdivision
of dividends 2
`Payment
`458JK.(1) Within 1 month after the end of each financial year, a 3
corporatised corporation's board must advise the corporation's shareholder 4
of the recommendation that, in the light of the information then available to 5
the board, it is likely to make under subsection (2). 6
`(2) Within 4 months after the end of the financial year, the board must 7
recommend to the shareholder that the corporation pay a stated dividend, or 8
not pay a dividend, for the financial year. 9
`(3) The board must consult with the shareholder before making the 10
recommendation. 11
`(4) Within 1 month after receiving the recommendation, the shareholder 12
must either-- 13
(a) approve the recommendation; or 14
(b) direct the payment of a stated dividend or a different stated 15
dividend. 16
`(5) If the shareholder is a local government, the approval or direction 17
must be by resolution of the local government. 18
`(6) The corporation's dividend for a financial year must not exceed its 19
profits, after-- 20
(a) provision has been made for any income tax or its equivalents; 21
and 22
(b) any unrealised capital gains from upwards revaluation of 23
non-current assets have been excluded. 24
`(7) The dividend must be paid within 6 months after the end of the 25
financial year or any further period that the shareholder allows. 26
`(8) For a corporation that is corporatised other than on 1 July, its first 27
financial year is the period from the day of its corporation to 30 June 28
following, unless its local government resolves a longer period. 29
`(9) A copy of the direction must be open to inspection. 30
s 39 124 s 39
Local Government Legislation Amendment
dividends 1
`Interim
`458JL.(1) A corporatised corporation's shareholder may, at any time 2
after 1 January in a financial year, require the corporation's board to make a 3
recommendation about the payment of interim amounts to the shareholder 4
(including the times at which the amounts are to be paid) on account of the 5
dividend that may become payable under section 458LL for the financial 6
year. 7
`(2) Within 1 month after receiving notice of the requirement, the board 8
must make a recommendation to the shareholder. 9
`(3) The shareholder must, within 1 month after receiving the 10
recommendation, either-- 11
(a) approve the recommendation; or 12
(b) direct the payment, at stated times, of stated amounts, or different 13
stated amounts, on account of the dividend that may become 14
payable for the financial year. 15
`(4) If the shareholder is a local government the approval and direction 16
must be by resolution of the local government. 17
`(5) A direction under subsection (3)(b) must not direct the payment of 18
an amount that is more than the corporatised corporation's estimated profit 19
for the first 6 months of the financial year, after-- 20
(a) provision has been made for any income tax or its equivalents; 21
and 22
(b) any unrealised capital gains from upwards revaluation of 23
non-current assets have been excluded. 24
`(6) A copy of the direction must be open to inspection. 25
payment for financial year of becoming a corporatised 26
`Dividend
corporation 27
`458JM. For applying section 458JK to a corporatised corporation for 28
the financial year when it became a corporatised corporation a dividend, or 29
an amount in the nature of a dividend, payable by the corporation is payable 30
for, at the discretion of the corporation's shareholder-- 31
(a) the entire financial year; or 32
s 39 125 s 39
Local Government Legislation Amendment
(b) the part of the financial year for which it was a corporatised 1
corporation. 2
3
Example--
4
A candidate LGOC becomes the business of an LGOC on 1 January 2000.
5
Depending on what the shareholder decides under paragraph (a), the dividend the
6
LGOC has to pay for the 1999-2000 financial year will relate either to the entire
7
financial year (even though it is an LGOC for only half the year), or only to the
8
period 1 January 2000 to 30 June 2000.
`Subdivision 22--Acquisition and disposal of assets and subsidiaries 9
power of shareholder to direct that asset not be disposed of 10
`Reserve
`458JN.(1) An LGOC's shareholder may, after consultation with the 11
LGOC's board, give the board a written direction requiring the LGOC or a 12
subsidiary of the LGOC not to dispose of a stated asset or class of assets. 13
`(2) The direction must be by resolution of the local government. 14
`(3) The board must ensure the direction is complied with by its 15
subsidiaries. 16
`(4) If the direction to an LGOC's board concerns the LGOC's 17
subsidiary, the LGOC's board must, to the extent the direction concerns the 18
subsidiary-- 19
(a) notify the subsidiary of the direction; and 20
(b) ensure the direction is complied with by the subsidiary. 21
`(5) The subsidiary's board must ensure that a direction of which it has 22
been notified is complied with in relation to the subsidiary to the extent that 23
the direction concerns the subsidiary. 24
`(6) A copy of the direction must be open to inspection. 25
of main undertakings 26
`Disposal
`458JO.(1) An LGOC or a subsidiary may dispose of any of its main 27
undertakings only with the prior approval, by resolution, of the LGOC's 28
local government. 29
s 39 126 s 39
Local Government Legislation Amendment
`(2) Subject to subsection (1), if an LGOC or its subsidiary disposes of 1
any of its main undertakings, the LGOC must, as soon as practicable, give 2
the local government written notice of the disposal. 3
of other subsidiaries prohibited 4
`Acquiring
`458JP.(1) A corporatised corporation must not form, or participate in 5
forming, a company that would become its subsidiary if the corporatised 6
corporation were a corporation registered under the Corporations Law. 7
`(2) A corporatised corporation may only acquire shares, or participate in 8
any other transaction, that will result in a body corporate becoming or 9
ceasing to be its subsidiary if the body corporate is established under this 10
part. 11
23--Employees 12
`Subdivision
of corporatised corporations 13
`Employees
`458JQ. The chief executive officer of a corporatised corporation may, 14
on behalf of the corporation, engage the employees the chief executive 15
officer considers necessary to perform the corporation's functions. 16
of employment 17
`Terms
`458JR.(1) The terms of employment of the employees of a corporatised 18
corporation are as determined by the corporation. 19
`(2) Subsection (1) has effect subject to any relevant award or industrial 20
agreement. 21
`(3) Employees of a corporatised corporation are not employees of its 22
local government. 23
relating to staff 24
`Arrangements
`458JS.(1) A corporatised corporation may arrange with the chief 25
executive of a department, or with an authority of the State, or the chief 26
executive officer of a local government for the services of officers or 27
s 39 127 s 39
Local Government Legislation Amendment
employees of the department or authority or local government to be made 1
available to it. 2
`(2) A corporatised corporation may arrange with the appropriate 3
authority of the Commonwealth or another State, or with an authority of the 4
Commonwealth or another State, for the services of officers or employees 5
of the public service of the Commonwealth or State, or of the authority, to 6
be made available to it. 7
`(3) A corporatised corporation may arrange for the services of an 8
employee of the corporation to be made available to-- 9
(a) the Commonwealth or another State; or 10
(b) an authority of the Commonwealth or another State; or 11
(c) a local government. 12
schemes 13
`Superannuation
`458JT.(1) A corporatised corporation may-- 14
(a) establish or amend superannuation schemes; or 15
(b) join in establishing or amending superannuation schemes; or 16
(c) take part in superannuation schemes. 17
`(2) However, the corporation may not establish or take part in a 18
superannuation scheme that does not meet the requirements of the 19
Superannuation Industry (Supervision) Act 1993 (Cwlth). 20
for officers and employees of corporatised 21
`Superannuation
corporation who were previously officers of a local government 22
`458JU.(1) In this section-- 23
"existing scheme", for a person to whom this section applies, means the 24
Local Government Superannuation Scheme or a superannuation 25
scheme established by Brisbane City Council for council employees 26
under the City of Brisbane Act 1924. 27
"person to whom this section applies" means a person employed by a 28
corporatised corporation who, immediately before becoming 29
employed, was a member of an existing scheme. 30
s 39 128 s 39
Local Government Legislation Amendment
`(2) If a person to whom this section applies was employed by Brisbane 1
City Council, subject to subsection (4)-- 2
(a) the person is to continue to be a member of the existing scheme 3
and, for that purpose, is taken to be a council employee; and 4
(b) the existing scheme continues to apply to the person and, for the 5
purpose, the corporatised corporation is to contribute to the 6
scheme as if it were the Brisbane City Council. 7
`(3) If a person to whom this section applies was employed by another 8
local government, subject to subsection (4)-- 9
(a) the person is to continue to be a member of the existing scheme 10
and, for that purpose, is taken to be an employee of a local 11
government and an eligible member under section 772(1);44 and 12
(b) the existing scheme continues to apply to the person, and, for the 13
purpose, the corporatised corporation is taken to be a local 14
government employing the person for chapter 13, part 3. 15
`(4) If-- 16
(a) the corporatised corporation establishes, joins in establishing or 17
takes part in establishing a superannuation scheme (other than an 18
existing scheme); and 19
(b) a person continued to be a member of an existing scheme under 20
subsection (2) or (3); 21
the person may, under arrangements prescribed under a regulation, stop 22
being a member and become a member of the scheme established or taken 23
part in by the corporation. 24
of leave and other entitlements of certain former 25
`Preservation
employees of local government 26
`458JV.(1) This section applies to a person who-- 27
(a) becomes employed by a corporatised corporation in a permanent 28
or full-time capacity within 1 year after the corporation becomes a 29
corporatised corporation; and 30
44 Section 772 (Membership of scheme)
s 39 129 s 39
Local Government Legislation Amendment
(b) was an employee of a local government employed in a permanent 1
or full-time capacity immediately before becoming employed by 2
the corporation. 3
`(2) If, when first employed by the corporatised corporation, the person 4
had leave entitlements that had been accrued as an employee of a local 5
government, the person must be treated as having accrued the entitlements 6
as an employee of the corporation. 7
`(3) If, when first employed by the corporatised corporation, the person 8
had not accrued leave entitlements as an employee of a local government, 9
for accruing leave entitlements of the person as an employee of the 10
corporation, the person's employment with the local government is taken to 11
be employment by the corporation. 12
`(4) A person is not under this section to claim or receive benefits twice 13
for the same entitlement. 14
`(5) If the person, as an employee of the corporatised corporation is or 15
becomes entitled to another entitlement based on the person's length of 16
service with the corporation, the person's employment with the local 17
government is taken to be employment by the corporation. 18
`(6) A person's cessation of employment with a local government to 19
become an employee of the corporatised corporation is not to be treated as a 20
termination of the person's employment with the local government under a 21
redundancy or voluntary early retirement or other similar arrangement. 22
24--Other matters 23
`Subdivision
corporation's seal 24
`Corporatised
`458K.(1) A corporatised corporation's seal is to be kept in the custody 25
directed by the board and may be used only as authorised by the board. 26
`(2) The attaching of the seal to a document must be witnessed by-- 27
(a) 2 or more directors; or 28
(b) at least 1 director and the corporation's chief executive officer; or 29
(c) a director or the corporation's chief executive officer and 1 or 30
more persons authorised by the board. 31
s 39 130 s 39
Local Government Legislation Amendment
`(3) Judicial notice must be taken of the imprint of the corporation's seal 1
appearing on a document. 2
of functions and name of corporatised corporation 3
`Change
`458KA.(1) A local government may, by resolution, change the 4
functions or name of its corporatised corporation. 5
`(2) A resolution under this section takes effect on publication in the 6
gazette of notice of the making of the resolution or a later day stated in the 7
resolution and the notice. 8
of documents 9
`Authentication
`458KB. A document made by a corporatised corporation (other than a 10
document that is required by law to be sealed) is sufficiently authenticated if 11
it is signed by-- 12
(a) the chairperson of the board; or 13
(b) the corporation's chief executive officer; or 14
(c) a person authorised to sign the document by-- 15
(i) resolution of the board; or 16
(ii) direction of the corporation's chief executive officer. 17
notice of certain signatures 18
`Judicial
`458KC. Judicial notice must be taken of-- 19
(a) the official signature of a person who is or has been chairperson 20
of the board of a corporatised corporation or a corporatised 21
corporation's director or chief executive officer; and 22
(b) the fact that the person holds or has held the office concerned. 23
of Criminal Justice Act 24
`Application
`458KD. A corporatised corporation is a unit of public administration for 25
the Criminal Justice Act 1989. 26
s 39 131 s 39
Local Government Legislation Amendment
of Parliamentary Commissioner Act 1974 1
`Application
`458KE.(1) The Parliamentary Commissioner Act 1974 does not apply 2
to-- 3
(a) a corporatised corporation prescribed under a regulation; or 4
(b) the making of a recommendation to the shareholder of a 5
corporatised corporation; or 6
(c) a decision about a corporatised corporation's commercial policy; 7
or 8
(d) a corporatised corporation in relation to its commercially 9
competitive activities. 10
`(2) In this section-- 11
"commercially competitive activity" means activity carried on, on a 12
commercial basis, in competition with a person, other than-- 13
(a) the Commonwealth or a State; or 14
(b) a State authority; or 15
(c) a local government. 16
`Division 4--Miscellaneous 17
and assessment of corporatised corporations 18
`Monitoring
`458KF.(1) The shareholder of a corporatised corporation or its 19
shareholder's delegate may delegate the shareholder's powers under 20
section 458IJ45 to an appropriately qualified person. 21
`(2) The shareholder of a corporatised corporation may ask the chief 22
executive officer of the local government to investigate, and report on, any 23
matter relating to a corporatised corporation. 24
`(3) For the investigation, the chief executive officer may give the 25
corporation written directions. 26
`(4) Without limiting subsection (3), the chief executive officer may 27
45 Section 458IJ (LGOC board to keep shareholder informed)
s 39 132 s 39
Local Government Legislation Amendment
direct the corporation-- 1
(a) to give to the chief executive officer any information about the 2
corporation and its subsidiaries the chief executive officer 3
considers necessary or desirable in connection with the 4
investigation; and 5
(b) to permit persons authorised by the chief executive officer to have 6
access to stated records and other documents about the 7
corporation and its subsidiaries that the chief executive officer 8
considers necessary or desirable in connection with the 9
investigation; and 10
(c) to take steps that the chief executive officer considers necessary or 11
desirable for the investigation. 12
`(5) The corporation must ensure any direction given to it under this 13
section-- 14
(a) is complied with by itself; and 15
(b) is also complied with by its subsidiaries. 16
`(6) The chief executive officer may delegate to an appropriately qualified 17
employee of the local government or another appropriately qualified person 18
the chief executive officer's powers under this section (including powers 19
delegated to the chief executive officer under subsection (1)). 20
of documents to board 21
`Giving
`458KG. If this part authorises or requires a document to be given to a 22
board of a corporatised corporation, it may be given to the chairperson of 23
the board. 24
notice of certain resolutions 25
`Judicial
`458KH.(1) This section applies to resolutions under this part that, to be 26
effective, must be published in the gazette. 27
`(2) To avoid any doubt, it is declared that on a resolution taking effect, it 28
has the force of law. 29
`(3) On publication in the gazette of a notice of the resolution, judicial 30
notice must be taken of the resolution. 31
s 39 133 s 39
Local Government Legislation Amendment
resolutions amending certain resolutions take effect 1
`When
`458KI. If, under this part, a resolution of a local government (the "first 2
resolution") does not take effect until publication in the gazette of a notice 3
of the making of the resolution, another resolution of the local government 4
amending the first resolution also has no effect until publication in the 5
gazette of notice of the making of the resolution or a later day stated in the 6
resolution and the notice. 7
governments and certain officers not directors etc. 8
`Local
`458KJ.(1) This section does not apply to a councillor or employee of a 9
local government who is a director of an LGOC to the extent the councillor 10
or employee acts in the capacity of director. 11
`(2) The following are not to be treated as officers of an LGOC or any 12
subsidiary of the LGOC-- 13
(a) shareholders of the LGOC; 14
(b) the shareholder's delegates; 15
(c) for a subsidiary--its LGOC; 16
(d) councillors of the LGOC's local government in the performance 17
of their duties as councillors for the local government; 18
(e) employees of the LGOC's local government in the performance 19
of their duties as employees for the local government. 20
`(3) A councillor or employee of a local government does not incur civil 21
liability for an act or omission done or omitted to be done honestly and 22
without negligence under this part in relation to an LGOC or a subsidiary of 23
an LGOC. 24
`(4) A liability that would, apart from subsection (3), attach to the 25
councillor or employee attaches instead to the local government. 26
`(5) This section has effect despite the Corporations Law. 27
s 39 134 s 39
Local Government Legislation Amendment
`Division 5--Additional provisions relating to board of corporatised 1
corporations 2
`Subdivision 1--Composition of board 3
of board 4
`Composition
`458L.(1) An LGOC's board must consist of at least 5 directors 5
appointed by its shareholder. 6
`(2) An LGOC's subsidiary's board must consist of at least 5 directors 7
appointed by its LGOC. 8
and deputy chairperson 9
`Chairperson
`458LA.(1) The shareholder must appoint a director to be the 10
chairperson of its LGOC's board and may appoint another director to be the 11
board's deputy chairperson. 12
`(2) The LGOC must appoint a director of its subsidiary to be the 13
chairperson of the subsidiary's board and may appoint another director to 14
be the board's deputy chairperson. 15
`(3) If there is a deputy chairperson, the deputy chairperson is to act as 16
chairperson-- 17
(a) during a vacancy in the office of chairperson; and 18
(b) during all periods when the chairperson is absent from duty or, 19
for another reason, cannot perform the functions of the office. 20
2--Meetings and other business of board 21
`Subdivision
of "required minimum number" of directors 22
`Meaning
`458LB. In this part, "required minimum number" of directors is the 23
number that is half the number of directors of which the board for the time 24
being consists or, if that number is not a whole number, the next higher 25
whole number. 26
s 39 135 s 39
Local Government Legislation Amendment
of meetings and other business 1
`Conduct
`458LC. Subject to this part, the board may conduct its business 2
(including its meetings) in the way it considers appropriate. 3
and places of meetings 4
`Times
`458LD.(1) Meetings of the board are to be held at the times and places 5
that the board determines. 6
`(2) However, the chairperson-- 7
(a) may at any time call a meeting; and 8
(b) if asked by at least the required minimum number of 9
directors--must call a meeting as requested. 10
at meetings 11
`Presiding
`459LE.(1) The chairperson is to preside at all meetings at which the 12
chairperson is present. 13
`(2) If the chairperson is not present at a meeting, the deputy chairperson 14
is to preside. 15
`(3) If both the chairperson and deputy chairperson are not present at a 16
meeting, the director chosen by the directors present at the meeting is to 17
preside. 18
and voting at meetings 19
`Quorum
`458LF.(1) At a meeting of the board-- 20
(a) the required minimum number of directors constitute a quorum; 21
and 22
(b) a question is to be decided by a majority of the votes of the 23
directors present and voting; and 24
(c) each director present has a vote on each question arising for 25
decision and, if the votes are equal, the director presiding also has 26
s 39 136 s 39
Local Government Legislation Amendment
a casting vote. 1
`(2) Subsection (1)(a) has effect subject to section 458IL(3).46 2
in meetings by telephone etc. 3
`Participation
`458LG.(1) The board may permit directors to participate in a particular 4
meeting, or all meetings, by-- 5
(a) telephone; or 6
(b) closed circuit television; or 7
(c) another form of communication that allows reasonably 8
contemporaneous and continuous communication between the 9
directors taking part in the meeting. 10
`(2) A director who participates in a meeting of the board under a 11
permission under subsection (1) is taken to be present at the meeting. 12
without meetings 13
`Resolutions
`458LH.(1) If at least a majority of directors sign a document containing 14
a statement that they are in favour of a resolution set out in the document, a 15
resolution in those terms is taken to have been passed at a meeting of the 16
board held on the day on which the document is signed or, if the directors 17
do not sign it on the same day, the day on which the last of the directors 18
constituting the majority signs the document. 19
`(2) If a resolution is, under subsection (1), taken to have been passed at 20
a meeting of the board, each director must immediately be advised of the 21
matter and given a copy of the terms of the resolution. 22
`(3) For subsection (1), 2 or more separate documents containing a 23
statement in identical terms, each of which is signed by 1 or more directors, 24
are taken to constitute a single document. 25
inutes 26
`M
`458LI. The board must keep minutes of its proceedings. 27
46 Section 458IL (Voting by interested director)
s 39 137 s 39
Local Government Legislation Amendment
`Subdivision 3--Provisions relating to directors 1
of directors 2
`Appointment
`458LJ.(1) A director of a corporatised corporation is to be appointed by 3
its shareholder for a term of not more than 5 years. 4
`(2) A person is not eligible for appointment if the person is not able to 5
manage a corporation, within the meaning of the Corporations Law, 6
because of section 229 of the Corporations Law. 7
director not to be chief executive officer or other employee of 8
`LGOC
LGOC's subsidiary 9
`458LK. A person must not be both a director of an LGOC and the chief 10
executive officer or another employee of a subsidiary of the LGOC. 11
for appointment of directors 12
`Procedure
`458LL.(1) A shareholder of a corporatised corporation must adopt 13
processes for selection of appropriate persons for appointment as directors 14
of the corporation. 15
`(2) In appointing a person as a director, the shareholder must have 16
regard to the person's ability to make a contribution to the corporation's 17
commercial performance and implementation of its statement of corporate 18
intent. 19
`(3) The processes are to be based on the principle that the board should 20
have the appropriate range of skills to ensure the corporation is a successful 21
business. 22
`(4) The shareholder must-- 23
(a) identify the key attributes required; and 24
(b) call for nominations through public advertising and canvassing of 25
suitable individuals; and 26
(c) evaluate nominations using independent expertise; and 27
(d) provide for interviews of shortlisted individuals by a nominated 28
group assisted by independent experts; and 29
s 39 138 s 39
Local Government Legislation Amendment
(e) appoint the most suitable individuals as directors. 1
`(5) The process for selection and appointment of directors of the 2
corporation may be carried out in conjunction with the process for 3
appointment of members of the establishment committee for the 4
corporation.47 5
`(6) A shareholder may act under this section to prepare a panel of names 6
of persons suitably qualified for appointment as director of the corporation. 7
of appointment not provided for under divs 1-4 8
`Terms
`458LM.(1) In relation to matters not provided for under divisions 1 to 9
4, a director holds office on the terms of appointment determined by the 10
shareholder. 11
`(2) Except as determined by the shareholder, a director is not entitled to 12
receive any payment, any interest in property or other valuable consideration 13
or benefit-- 14
(a) by way of remuneration as a director; or 15
(b) in connection with retirement from office, or other termination of 16
office, as a director. 17
of acting director 18
`Appointment
`458LN. The shareholder may appoint a person to act as a director of a 19
board during any period, or all periods, when a director is absent from duty 20
or, for another reason, cannot perform the functions of the office. 21
22
`Resignation
`458LO.(1) A director, or person appointed under section 458LA48, may 23
resign by signed notice given to the shareholder. 24
`(2) The chairperson or deputy chairperson may resign as chairperson or 25
deputy chairperson and remain a director. 26
47 Section 458EF (Procedure for appointment of establishment committee) refers.
48 Section 458LA (Chairperson and deputy chairperson)
s 39 139 s 39
Local Government Legislation Amendment
of appointment as director 1
`Termination
`458LP.(1) The shareholder may, at any time, terminate the appointment 2
of all or any directors of the board for any reason or none. 3
`(2) A person ceases to be a director of an LGOC if-- 4
(a) when appointed a director, the person was a councillor or 5
employee of the LGOC's local government; and 6
(b) the person ceases to be a councillor or employee. 7
`(3) A person also ceases to be a director of a corporatised corporation if 8
the person ceases to be eligible for appointment as a director. 9
6--Additional provisions relating to chief executive officers 10
`Division
of chief executive officer 11
`Appointment
`458LQ. A chief executive officer of a corporatised corporation is to be 12
appointed by the corporation's board. 13
government employees cannot be chief executive officers of 14
`Local
corporatised corporations 15
`458LR. A person must not be both an employee of a local government 16
and the chief executive officer of a corporatised corporation. 17
may be chief executive officer 18
`Director
`458LS.(1) Nothing in this part prevents a person who is not a councillor 19
or employee of the local government being both a director and the chief 20
executive officer of a corporatised corporation. 21
`(2) However, a director of a corporatised corporation who is its chief 22
executive officer must abstain from voting at meetings of the corporation's 23
board as a director on matters concerning the role, performance or 24
employment conditions of the chief executive officer. 25
s 39 140 s 39
Local Government Legislation Amendment
of acting chief executive officer 1
`Appointment
`458LT. The board may appoint a person to act as chief executive 2
officer-- 3
(a) during a vacancy in the office; or 4
(b) during any period, or all periods, when the chief executive officer 5
is absent from duty or is, for another reason, cannot perform the 6
functions of the office. 7
of appointment not provided for under divs 1 to 4 8
`Terms
`458LU. The chief executive officer of a corporatised corporation holds 9
office on the terms not provided for under divisions 1 to 4 as are decided by 10
the board of the corporation. 11
12
`Resignation
`458LV. The chief executive officer of a corporatised corporation may 13
resign by signed notice given to the chairperson of the corporation's board. 14
of appointment 15
`Termination
`458LW.(1) A corporatised corporation's board may, at any time, 16
terminate the appointment of the chief executive officer of the corporation 17
for any reason or none. 18
`(2) The termination of the appointment of the chief executive officer 19
under subsection (1) does not affect any rights to compensation to which 20
the chief executive officer may be entitled under the terms of the chief 21
executive officer's appointment. 22
s 39 141 s 39
Local Government Legislation Amendment
`CHAPTER 7B--CONDUCT OF COMPETITIVE 1
BUSINESS ACTIVITIES 2
`PART 1--OBJECT AND APPLICATION 3
of ch 7B 4
`Object
`458M. The object of this chapter is to provide for-- 5
(a) the application of competitive neutrality principles to certain roads 6
business activities of local governments; and 7
(b) the identification of business activities of local governments to 8
which competitive neutrality principles may apply; and 9
(c) the application by local governments of competitive neutrality 10
principles to those business activities. 11
neutrality principles 12
`Competitive
`458MA. "Competitive neutrality principles" includes-- 13
(a) the efficiency of overall resource use is promoted by ensuring 14
markets are not unnecessarily distorted; and 15
(b) wherever possible and appropriate, advantages and disadvantages 16
that arise because a business activity or roads business activity is 17
part of a local government be removed. 18
to Brisbane City Council 19
`Application
`458MB. This chapter applies to the Brisbane City Council. 20
s 39 142 s 39
Local Government Legislation Amendment
ART 2--DEFINITIONS 1
`P
for ch 7B 2
`Definitions
`458MC. In this chapter-- 3
"business activity" see section 458MD. 4
"code of competitive conduct", for a local government, means a code in 5
force for this chapter under-- 6
(a) if the Local Government Finance Standards apply to the local 7
government--the standards; or 8
(b) for Brisbane City Council--a regulation under the City of 9
Brisbane Act 1924, section 127. 10
"roads business activity", of a local government, means-- 11
(a) the construction or maintenance of State-controlled roads for 12
which the local government submits an offer to carry out work on 13
State-controlled roads in response to a tender invitation other than 14
through a sole supplier arrangement; or 15
(b) submission of a competitive tender for construction or road 16
maintenance works-- 17
(i) on roads of the local government which the local 18
government has put out to competitive tender; or 19
(ii) called for by another local government; 20
but does not include an activity, or part of an activity, prescribed under a 21
regulation. 22
of "business activity" 23
`Meaning
`458MD.(1) A "business activity", of a local government, is-- 24
(a) trading in goods and services to clients such as off-street parking 25
and cultural, sporting and recreational facilities and quarries if, in 26
carrying on the activity, the local government engages in 27
competition with the private sector; or 28
(b) submission of a competitive tender in the local government's 29
s 39 143 s 39
Local Government Legislation Amendment
own tendering process in competition with others for the 1
provision of goods and services to itself. 2
`(2) However, the following activities of a local government are not 3
business activities-- 4
(a) a significant business activity under chapter 7A49 if the local 5
government has resolved to implement reforms under the chapter 6
for the activity; or 7
(b) a roads business activity; or 8
(c) library services; or 9
(d) an activity, or part of an activity, prescribed under a regulation. 10
`PART 3--CODE OF COMPETITIVE CONDUCT 11
must be applied to roads business activities 12
`Code
`458ME.(1) A local government must apply the code of competitive 13
conduct in carrying on its roads business activities. 14
`(2) Subsection (1) applies-- 15
(a) for an activity mentioned in the definition "roads business 16
activity", paragraph (a)--to offers submitted on or after 1 January 17
1998; and 18
(b) for an activity mentioned in the definition "roads business 19
activity", paragraph (b)--to tenders submitted on or after 1 July 20
1998. 21
code must be applied to other business activities 22
`When
`458MF. If, under part 4, a local government resolves the code of 23
competitive conduct is to apply to a business activity of the local 24
49 Chapter 7A (National competition reform of significant business activities)
s 39 144 s 39
Local Government Legislation Amendment
government, the local government must apply the code in carrying on the 1
business activity. 2
ART 4--ANNUAL REVIEW OF BUSINESS 3
`P
ACTIVITIES 4
review of business activities 5
`Annual
`458MG. During each financial year (the "relevant year") starting with 6
the 1997-1998 financial year, a local government must identify its activities 7
that are business activities. 8
government to resolve whether to apply code of competitive 9
`Local
conduct to business activities 10
`458MH.(1) During each financial year starting with the 1997-1998 11
financial year, each local government must resolve whether the code of 12
competitive conduct should or should not be applied to each of its business 13
activities for the following financial year. 14
`(2) A local government may resolve under subsection (1) that the 15
resolution is to take effect on a stated day earlier than the following financial 16
year. 17
`(3) A local government may, at any time, resolve the code should no 18
longer apply to a business activity. 19
`(4) A resolution under subsection (1) or (3) to not apply, or to no longer 20
apply, the code to a business activity must include a statement of the 21
reasons for not applying, or for no longer applying the code to the business 22
activity. 23
of code of competitive conduct to other activities 24
`Application
`458MI. Nothing in this chapter prevents a local government from 25
applying the code of competitive conduct to another activity carried on by 26
the local government. 27
s 39 145 s 39
Local Government Legislation Amendment
to be included in annual report 1
`Information
`458MJ.(1) A local government's annual report must contain a list of its 2
activities that were business activities during the financial year and a 3
statement whether the code of competitive conduct was applied to each of 4
the activities and, if not, the reason it was not applied. 5
`(2) Subsection (1) first applies to the annual report for the 1998-1999 6
financial year. 7
`(3) The annual report for the 1997-1998 financial year must also contain 8
a list of its business activities under this chapter and a statement whether the 9
local government intends to apply the code of competitive conduct for the 10
1998-1999 financial year to each of the activities and, if not, the reason it is 11
intended not to be applied. 12
`(4) Subsections (2) and (3) and this subsection expire on 1 July 2000.'. 13
`CHAPTER 7C--REFORM OF CERTAIN WATER 14
AND SEWERAGE SERVICES 15
`PART 1--OBJECT AND APPLICATION 16
of ch 7C 17
`Object
`458N. The object of this chapter is, in relation to relevant business 18
activities that provide water and sewerage services, to achieve efficiency and 19
sustainability in the use of water by-- 20
(a) requiring an assessment by local governments of the 21
cost-effectiveness of introducing two-part tariffs for water 22
services; and 23
(b) requiring decisions by local governments whether two-part tariffs 24
are to be applied for water services; and 25
(c) if two-part tariffs are to be applied for water services--requiring 26
s 39 146 s 39
Local Government Legislation Amendment
implementation of the tariffs in accordance with the decision; and 1
(d) requiring charges for water services to be based on consumption; 2
and 3
(e) requiring full cost recovery for water and sewerage services; and 4
(f) requiring identification and disclosure of cross-subsidies and 5
community service obligations in the provision of water and 6
sewerage services; and 7
(g) requiring disclosure of a class of consumers who are provided 8
with water and sewerage services at an amount below full cost 9
and the amount. 10
to Brisbane City Council 11
`Application
`458NA. This chapter applies to the Brisbane City Council. 12
of relevant business activity 13
`Meaning
`458NB. In this chapter-- 14
"relevant business activity" means-- 15
(a) a significant business activity providing water or sewerage 16
services; or 17
(b) an activity of a corporatised corporation providing water or 18
sewerage services that was a significant business activity. 19
ART 2--DEFINITIONS 20
`P
for ch 7C 21
`Definitions
`458NC. In this chapter-- 22
"consumer", of a service, means the person who is levied a utility charge 23
for the service, whether an owner or the person at whose request the 24
service is supplied. 25
s 39 147 s 39
Local Government Legislation Amendment
"corporatised corporation" means a corporatised corporation 1
under chapter 7A.50 2
"new type 1 or 2 business activity" means a new type 1 or 2 business 3
activity under chapter 7A. 4
"two-part tariff" means a basis for a utility charge for water services 5
consisting of access and consumption components with the objective 6
of achieving efficiency and sustainability in the use of water. 7
"two-part tariff report" see section 458ND. 8
"type 1 or 2 business activity" means a type 1 or 2 business activity under 9
chapter 7A. 10
`PART 3--ASSESSMENT OF COST EFFECTIVENESS 11
OF TWO-PART TARIFFS FOR WATER SUPPLY 12
of cost effectiveness of two-part tariffs to be carried out 13
`Assessment
`458ND.(1) A local government must ensure an assessment of the cost 14
effectiveness of the application of a two-part tariff for a relevant business 15
activity providing water services is carried out and a report (a "two-part 16
tariff report") prepared. 17
`(2) A two-part tariff report must include-- 18
(a) a finding whether it is cost effective for the application of a 19
two-part tariff for the service to an extent stated in the report; and 20
(b) if the finding is that it is cost effective for application of a two-part 21
tariff-- 22
(i) a recommendation for application of a two-part tariff for the 23
service to the extent stated in the report; and 24
(ii) if necessary, proposed strategies (including a timetable) that 25
may be followed to apply a two-part tariff. 26
50 Chapter 7A (National competition reform of significant business activities)
s 39 148 s 39
Local Government Legislation Amendment
1
Example to subsection (2)--
2
A two-part tariff report could--
3
(a) find that it is cost effective for a two-part tariff to be applied to part only
4
of the local government's area and, in that part, only for stated
5
consumers; and
6
(b) recommend a two-part tariff apply to the stated consumers in the part.
government to resolve on assessment and report process 7
`Local
`458NE. Subject to compliance with this chapter, the local government 8
must decide-- 9
(a) how the assessment is to be conducted; and 10
(b) the matters the report must deal with; and 11
(c) when the report is to be presented to the local government. 12
13
Example for paragraph (a)--
14
The local government may decide the assessment is to include a public
15
consultation process and be carried out by the local government or by external
16
consultants or in cooperation with other local governments carrying out similar
17
assessments or in conjunction with public benefit assessments under chapter 7A.
for assessments and reports 18
`Timing
`458NF.(1) The two-part tariff report must be completed in enough time 19
to allow the local government to comply with sections 458NK, 458NL and 20
458NO. 21
`(2) The report must be presented to a meeting of the local government 22
as soon as practicable after the report is completed. 23
assessment within 3 years if recommendation on two-part 24
`Fresh
tariffs not implemented 25
`458NG.(1) This section applies if-- 26
(a) a two-part tariff report recommends the application of a two-part 27
tariff to any extent for a relevant business activity; and 28
(b) the local government resolves that a two-part tariff not apply for 29
s 39 149 s 39
Local Government Legislation Amendment
the activity to the extent recommended. 1
`(2) The local government must ensure a fresh assessment is carried out 2
and a fresh two-part tariff report prepared for the activity within 3 years 3
after the end of the financial year in which the report was presented to the 4
local government. 5
`(3) Section 458ND applies to the assessment and report as if the 6
activity, to the extent that a two-part tariff has, contrary to the report 7
mentioned in subsection (1), not been applied, were the relevant business 8
activity. 9
about assessments and reports 10
`Regulation
`458NH. A regulation may prescribe requirements for assessments and 11
reports under this part including different requirements for different classes 12
of assessments and reports. 13
`PART 4--DECISION ON TWO-PART TARIFF 14
REPORTS 15
of pt 4 16
`Object
`458NI. The object of this part is to require local governments to 17
consider two-part tariff reports and decide the application or otherwise of 18
two-part tariffs for relevant business activities that provide a water service. 19
access to two-part tariff reports 20
`Public
`458NJ. From presentation of the two-part tariff report for a relevant 21
business activity to a meeting of a local government until the local 22
government decides whether to apply a two-part tariff for the activity, the 23
report must be open to inspection. 24
s 39 150 s 39
Local Government Legislation Amendment
government to resolve whether to apply two-part tariff 1
`Local
`458NK.(1) As soon as practicable, and within 3 months after 2
presentation of a two-part tariff report for a relevant business activity to a 3
meeting of a local government, the local government must resolve whether 4
a two-part tariff should be applied, and the extent of the application, for the 5
activity. 6
`(2) A resolution to apply a two-part tariff must-- 7
(a) state the extent of application; and 8
(b) if necessary, approve strategies (including a timetable) for its 9
application under section 458NP. 10
`(3) A resolution under subsection (1) inconsistent with the 11
recommendation in the report must include a statement of the reasons for 12
the inconsistency. 13
`(4) Subsection (2)(b) does not prevent a local government changing its 14
strategies for the application of a two-part tariff so long as a two-part tariff 15
is applied under the resolution under subsection (2)(a). 16
for resolution 17
`Timing
`458NL. The local government must make a resolution under 18
section 458NK-- 19
(a) for a relevant business activity that is or was a type 1 or 2 20
business activity-- 21
(i) by 31 December 1998; or 22
(ii) a day (not later than 31 March 1999) approved by the 23
Minister; or 24
(b) for a relevant business activity that is or was a new type 1 or 2 25
business activity-- 26
(i) by 31 December after the financial year for which the 27
activity is first identified by the local government as a new 28
type 1 or 2 business activity; or 29
(ii) a day (not later than the following 31 March) approved by 30
the Minister. 31
s 39 151 s 39
Local Government Legislation Amendment
to Minister of resolution 1
`Notice
`458NM. As soon as practicable after making a resolution that a two-part 2
tariff apply or not apply for a relevant business activity, the local 3
government must give to the Minister-- 4
(a) a copy of the two-part tariff report for the activity; and 5
(b) a copy of the resolution. 6
PART 5--IMPLEMENTATION OF CERTAIN 7
`
CHARGING ARRANGEMENTS AND REPORTING 8
PROCEDURES 9
governments to implement charging and operational 10
`Local
arrangements for relevant business activities 11
`458NN. A local government must ensure that, for a relevant business 12
activity-- 13
(a) if it has resolved that a two-part tariff is to be applied for the 14
activity--a two-part tariff is applied; and 15
(b) consumption is the basis for utility charges for water services; 16
and 17
(c) full cost recovery is applied for water and sewerage services; and 18
(d) cross-subsidies between classes of consumers and community 19
service obligations in the provision of water and sewerage 20
services are identified and disclosed; and 21
(e) the classes of consumers who are provided with water and 22
sewerage services at an amount below full cost and the amount 23
are disclosed. 24
of work to apply two-part tariffs 25
`Start
`458NO. If a local government approves strategies for application of a 26
two-part tariff, for a relevant business activity, the local government must 27
s 40 152 s 40
Local Government Legislation Amendment
ensure work is started to apply a two-part tariff under a resolution made 1
under section 458NK on or before the day stated in section 458NL before 2
which the resolution must be made. 3
for implementing arrangements 4
`Timetable
`458NP.(1) This section applies to a local government required to act 5
under section 458NN. 6
`(2) Implementation must be completed on or before-- 7
(a) for a relevant business activity that is or was a type 1 or 2 8
business activity--1 July 2000; or 9
(b) for a relevant business activity that is or was a new type 1 or 2 10
business activity--1 July of the year that is 2 years after the end 11
of the financial year for which the activity was identified as being 12
a new type 1 or 2 business activity. 13
`(3) For a particular relevant business activity, the Minister may extend 14
the time for its implementation subject to the terms the Minister considers 15
appropriate. 16
for applying s 458NN(b) to (e) 17
`Strategies
`458NQ. A local government must approve and start implementing 18
strategies for the application to its relevant business activities of the matters 19
stated in section 458NN(b) to (e) by-- 20
(a) for a relevant business activity that is or was a type 1 or 2 21
business activity--31 December 1998; or 22
(b) for a relevant business activity that is or was a new type 1 or 2 23
business activity--31 December after the financial year for which 24
the activity is first identified by the local government as a new 25
type 1 or 2 business activity.'. 26
of new s 464A 27
Insertion
Clause 40. Before section 465-- 28
insert-- 29
s 41 153 s 42
Local Government Legislation Amendment
of division 1
`Application
`464A. This division applies subject to division 5.51'. 2
of s 466 (Step 1--make a law) 3
Amendment
Clause 41. Section 466-- 4
insert-- 5
`(3) For subsection (1)(a), the adoption of a model local law with 6
changes about an anti-competitive provision consistent with a resolution of 7
the local government made under section 489I in relation to the local law is 8
the adoption of a model local law. 9
`(4) A local government must not adopt a model local law with an 10
anti-competitive provision (whether or not in an amended form) unless the 11
local government has complied with division 5 in relation to the proposed 12
model local law.'. 13
of s 467 (Step 2--give public notice of law) 14
Amendment
Clause 42.(1) Section 467(1)-- 15
insert-- 16
`(e) if a public interest test report under division 5 has identified an 17
anti-competitive provision in the model local law and the 18
provision is changed--the fact of the anti-competitive provision 19
and the extent of change.'. 20
(2) Section 467(4)-- 21
insert-- 22
`(c) advice of any anti-competitive provisions included in the local law 23
and reasons for their inclusion.'. 24
51 Division 5 (Anti-competitive provisions of proposed local laws and proposed
local law policies)
s 43 154 s 45
Local Government Legislation Amendment
of new s 472A 1
Insertion
Clause 43. Before section 473-- 2
insert-- 3
of division 4
`Application
`472A. This division applies subject to division 5.52'. 5
of s 475 (Step 2--ensure proposed law satisfactorily 6
Amendment
deals with any State interest) 7
Clause 44. Section 475(1)(b)-- 8
omit, insert-- 9
`(b) give the Minister information about-- 10
(i) any provision that, under division 5 is a possible 11
anti-competitive provision of the proposed local law and 12
actions taken or proposed to be taken by the local 13
government under the division about the provision; and 14
(ii) the proposed local law required by the Minister or by 15
regulation.'. 16
of s 480 (Step 7--again ensure proposed law 17
Amendment
satisfactorily deals with any State interest) 18
Clause 45. Section 480-- 19
insert-- 20
`(6) A local government must not act under subsection (2) unless the 21
local government has complied with division 553 in relation to the proposed 22
local law.'. 23
52 Division 5 (Anti-competitive provisions of proposed local laws and proposed
local law policies)
53 Division 5 (Anti-competitive provisions of proposed local laws and proposed
local law policies)
s 46 155 s 49
Local Government Legislation Amendment
of s 482 (Step 9--give public notice of law) 1
Amendment
Clause 46. Section 482(4)-- 2
insert-- 3
`(c) advice of any anti-competitive provisions included in the local law 4
and reasons for their inclusion.'. 5
of new s 482A 6
Insertion
Clause 47. Before section 483-- 7
insert-- 8
of division 9
`Application
`482A. This division applies subject to division 5.54'. 10
of s 488 (Step 5--make proposed policy) 11
Amendment
Clause 48. Section 488-- 12
insert-- 13
`(4) For subsection (2), an amendment of a proposed local law policy 14
with changes consistent with a resolution of the local government made 15
under section 489I in relation to the local law policy is not a substantial 16
amendment of the policy. 17
`(5) A local government must not act under subsection (1) or (2) unless 18
the local government has complied with division 555 in relation to the 19
proposed local law policy.'. 20
of s 489 (Step 6--give public notice of policy) 21
Amendment
Clause 49. Section 489(3)-- 22
insert-- 23
54 Division 5 (Anti-competitive provisions of proposed local laws and proposed
local law policies)
55 Division 5 (Anti-competitive provisions of proposed local laws and proposed
local law policies)
s 50 156 s 50
Local Government Legislation Amendment
`(c) advice of any anti-competitive provisions included in the local law 1
policy and reasons for their inclusion.'. 2
of new ch 8, pt 2, div 5 3
Insertion
Clause 50. After section 489A-- 4
insert-- 5
`Division 5--Anti-competitive provisions of proposed local laws and 6
proposed local law policies 7
of division 8
`Application
`489B.(1) In this section-- 9
"cut-off day" means-- 10
(a) for a local law or local law policy made before 31 December 11
1997--31 December 1997; or 12
(b) for a local law made under division 3 after 31 December 1997 13
and, if in making the local law, the local government, before 14
31 December 1997, complied with section 480(2)--a later day 15
stated under a regulation. 16
`(2) Subject to subsections (3) and (4), this division applies to local laws 17
and local law policies made after the commencement of this section. 18
`(3) This division does not apply to local laws or local law policies made 19
before the cut-off day if the local government, before 31 December 1997, 20
decides to apply chapter 15, part 1, division 3A to the local law or local law 21
policy as if the local law or local law policy were an existing local law or 22
local law policy under that division. 23
`(4) This division does not apply to interim local laws. 24
for div 5 25
`Definitions
`489C. In this division-- 26
"anti-competitive provision", of a proposed local law or proposed local 27
law policy, means a provision that, under a regulation, is treated as 28
creating barriers to entry to a market or barriers to competition within a 29
s 50 157 s 50
Local Government Legislation Amendment
market. 1
"possible anti-competitive provision" see section 489E. 2
"proposed local law" includes a local law proposed to be made under 3
division 1. 4
"public interest test" means a review of a possible anti-competitive 5
provision of a proposed local law or proposed local law policy under 6
this division. 7
"public interest test report" means the report, including 8
recommendations, on a public interest test. 9
laws and local law policies not to be made unless local 10
`Local
government complies with division 11
`489D. A local government must not make a local law or a local law 12
policy unless the local government complies with this division. 13
of proposed local law or proposed local law policy to identify 14
`Review
possible anti-competitive provisions 15
`489E. A local government must carry out a review of its proposed local 16
law or proposed local law policy and identify any provision of the law or 17
policy that it considers may be an anti-competitive provision (a "possible 18
anti-competitive provision"). 19
interest test of possible anti-competitive provisions 20
`Public
`489F.(1) Before making a local law or local law policy containing a 21
possible anti-competitive provision, a local government must ensure a 22
public interest test is carried out and a public interest test report prepared for 23
each of the possible anti-competitive provisions. 24
`(2) A public interest test report must, for each possible anti-competitive 25
provision, recommend-- 26
(a) that the provision should be retained as it is not an 27
anti-competitive provision; or 28
(b) for a provision that the report identifies as being an 29
s 50 158 s 50
Local Government Legislation Amendment
anti-competitive provision--that the whole or part of the 1
provision-- 2
(i) in the public interest, should be retained (whether in its 3
current or another form); or 4
(ii) should not be retained. 5
`(3) For subsection (2), it is in the public interest for an anti-competitive 6
provision to be retained (whether in its current or another form) if-- 7
(a) the benefits of the provision to the community as a whole 8
outweigh the costs; and 9
(b) the most appropriate way of achieving the objectives of the 10
proposed local law or proposed local law policy is by restricting 11
competition in the way provided in the provision. 12
government to decide on test and report process 13
`Local
`489G.(1) The local government must decide-- 14
(a) how the public interest test is to be conducted; and 15
(b) the matters with which the public interest test report must deal. 16
`(2) The decision must provide for a consultation process for the public 17
interest test and state how the process is to be used in the test. 18
19
Example--
20
A local government may decide that the consultation process concerning possible
21
anti-competitive provisions must include--
22
(a) giving notice of the test and inviting submissions about the test; and
23
(b) a period for submissions to be received; and
24
(c) direct consultation with interested parties; and
25
(d) consideration of the submissions received about the test.
26
The local government may also decide the process for the test may be carried out
27
in conjunction with another process required for making the local law or local law
28
policy such as step 3 in section 476 or step 2 in section 485.
`(3) The decision is subject to a regulation under section 489K. 29
s 50 159 s 50
Local Government Legislation Amendment
interest test report to be presented to local government 1
`Public
meeting 2
`489H. As soon as practicable after a public interest test report is 3
completed, it must be presented to a meeting of the local government. 4
government to resolve whether to implement recommendations 5
`Local
of public interest test 6
`489I.(1) After a public interest test report has been presented to a 7
meeting of a local government, the local government must resolve whether 8
to implement the recommendations of the report. 9
`(2) A local government may make a contrary resolution about an 10
anti-competitive provision only if the local government is of the opinion and 11
resolves that-- 12
(a) the benefits of the provision in the proposed local law or 13
proposed local law policy to the community as a whole outweigh 14
the costs; and 15
(b) the most appropriate way of achieving the objectives of the 16
proposed local law or proposed local law policy is by restricting 17
competition in the way provided in the provision. 18
`(3) A resolution under subsection (2) must include a statement of the 19
reasons for finding that-- 20
(a) the benefits of the provision to the community as a whole 21
outweigh the costs; and 22
(b) the most appropriate way of achieving the objectives of the 23
proposed local law or proposed local law policy is by restricting 24
competition in the way provided in the provision. 25
`(4) In subsections (2) and (3)-- 26
"contrary resolution" means a resolution by a local government to-- 27
(a) retain an anti-competitive provision of a proposed local law or 28
proposed local law policy despite a recommendation in a public 29
interest test report that the provision should not be retained; or 30
(b) retain an anti-competitive provision of a proposed local law or 31
s 51 160 s 51
Local Government Legislation Amendment
proposed local law policy in a form not consistent with the form 1
recommended in a public interest test report. 2
interest test reports are open to inspection 3
`Public
`489J. From the day the public interest test report is presented to a 4
meeting of a local government the report must be open to inspection. 5
about public interest tests and public interest test reports 6
`Regulation
`489K. A regulation may be made about-- 7
(a) the procedures to be followed and criteria to be used to identify 8
possible anti-competitive provisions of proposed local laws or 9
proposed local law policies; and 10
(b) requirements for public interest tests and public interest test 11
reports; and 12
(c) the giving of information by local governments to the Minister.'. 13
of s 672 (Proceedings for offences) 14
Replacement
Clause 51. Section 672-- 15
omit, insert-- 16
and summary offences 17
`Indictable
`672.(1) An offence against chapter 7A, part 6 for which the maximum 18
penalty of imprisonment is 2 years or more is an indictable offence. 19
`(2) Any other offence against this Act is a summary offence. 20
for indictable offences 21
`Proceedings
`672A.(1) A proceeding for an indictable offence against this Act may be 22
taken, at the prosecution's election-- 23
(a) by way of summary proceedings under the Justices Act 1886; or 24
(b) on indictment. 25
`(2) A magistrate must not hear an indictable offence summarily if-- 26
s 51 161 s 51
Local Government Legislation Amendment
(a) the defendant asks at the start of the hearing that the charge be 1
prosecuted on indictment; or 2
(b) the magistrate considers that the charge should be prosecuted on 3
indictment. 4
`(3) If subsection (2) applies-- 5
(a) the magistrate must proceed by way of an examination of 6
witnesses for an indictable offence; and 7
(b) a plea of the person charged at the start of the proceeding must be 8
disregarded; and 9
(c) evidence brought in the proceeding before the magistrate decided 10
to act under subsection (2) is taken to be evidence in the 11
proceeding for the committal of the person for trial or sentence; 12
and 13
(d) before committing the person for trial or sentence, the magistrate 14
must make a statement to the person as required by the Justices 15
Act 1886, section 104(2)(b). 16
`(4) The maximum penalty that may be summarily imposed for an 17
indictable offence is 100 penalty units or 1 year's imprisonment. 18
on who may summarily hear indictable offence 19
`Limitation
proceedings 20
`672B.(1) A proceeding must be before a magistrate if it is a 21
proceeding-- 22
(a) for the summary conviction of a person on a charge for an 23
indictable offence; or 24
(b) for an examination of witnesses for a charge for an indictable 25
offence. 26
`(2) However, if a proceeding for an indictable offence is brought before 27
a justice who is not a magistrate, jurisdiction is limited to taking or making 28
a procedural action or order within the meaning of the Justices of the Peace 29
and Commissioners for Declarations Act 1991. 30
s 52 162 s 53
Local Government Legislation Amendment
on time for starting summary proceedings 1
`Limitation
`672C. A proceeding for an offence against this Act by way of summary 2
proceeding under the Justices Act 1886 must start-- 3
(a) within 1 year after the commission of the offence; or 4
(b) within 6 months after the offence comes to the complainant's 5
knowledge, but within 2 years after the commission of the 6
offence.'. 7
of new s 712A 8
Insertion
Clause 52. After section 712-- 9
insert-- 10
of complainant's knowledge of matter 11
`Proof
`712A. In a complaint starting a proceeding, a statement that the matter 12
of the complaint came to the complainant's knowledge on a stated day is 13
evidence of the matter.'. 14
of new ss 793B-793C 15
Insertion
Clause 53. After s 793A-- 16
insert-- 17
of Freedom of Information Act and Judicial Review Act 18
`Application
`793B.(1) This section applies to the Brisbane City Council. 19
`(2) The Freedom of Information Act 1992 does not apply to a document 20
received or brought into existence by a corporatised corporation in carrying 21
out its excluded activities. 22
`(3) The Judicial Review Act 1991 does not apply to a decision of a 23
corporatised corporation made in carrying out its excluded activities. 24
`(4) A regulation may declare the activities of a corporatised corporation 25
that are taken to be, or are taken not to be, activities conducted on a 26
commercial basis. 27
`(5) In this section-- 28
"commercial activities" means activities conducted on a commercial basis. 29
s 54 163 s 54
Local Government Legislation Amendment
"community service obligations" has the same meaning as in 1
section 458I. 2
"corporatised corporation" has the same meaning as in chapter 7A, 3
part 6. 4
"excluded activities" means-- 5
(a) commercial activities; or 6
(b) community service obligations prescribed under a regulation. 7
and renumbering of Act 8
`Numbering
`793C.(1) At the Minister's direction, in the next reprint of this Act 9
produced under the Reprints Act 1992, the provisions of this Act may be 10
numbered and renumbered as permitted by the Reprints Act 1992, 11
section 43. 12
`(2) Notice of the direction must be published in the gazette.'. 13
of new ch 15, pt 1, div 3A 14
Insertion
Clause 54. After section 803-- 15
insert-- 16
3A--Anti-competitive provisions of existing local laws and 17
`Division
existing local law policies 18
`Subdivision 1--Preliminary 19
to Brisbane City Council 20
`Application
`803A. This division applies to the Brisbane City Council. 21
of div 22
`Application
`803B.(1) In this section-- 23
"cut-off day" means-- 24
(a) for a local law or local law policy made before 31 December 25
s 54 164 s 54
Local Government Legislation Amendment
1997--31 December 1997; or 1
(b) for a local law made under chapter 8, part 2, division 3 after 2
31 December 1997 and, in making the local law, the local 3
government, before 31 December 1997, complied with 4
section 480(2)--a later day stated under a regulation. 5
`(2) This division applies to-- 6
(a) a local law or local law policy in force immediately before the 7
commencement of this section; and 8
(b) a local law or local law policy made after the commencement but 9
before the cut-off day if, before 31 December 1997, the local 10
government decided to apply this division to the local law or local 11
law policy. 12
`(3) This division does not apply to interim local laws. 13
`(4) This division ceases to apply to a local law or local law policy on the 14
local law or local law policy being repealed. 15
for div 3A 16
`Definitions
`803C. In this division-- 17
"anti-competitive provision", of an existing local law or existing local law 18
policy, means a provision that, under a regulation, is treated as creating 19
barriers to entry to a market or barriers to competition within a market. 20
"existing local law" means a local law to which, under section 803B, this 21
division applies. 22
"existing local law policy" means a local law policy to which, under 23
section 803B, this division applies. 24
"likely anti-competitive provision" see section 803D. 25
"possible anti-competitive provision" see section 803G. 26
"public interest test" means a review of a possible anti-competitive 27
provision of an existing local law or existing local law policy under 28
this division. 29
"public interest test report" means the report, including 30
recommendations, on a public interest test. 31
s 54 165 s 54
Local Government Legislation Amendment
"type 1 or 2 business activity" means a type 1 or 2 business activity under 1
chapter 7A. 2
`Subdivision 2--Anti-competitive provisions of existing local laws and 3
existing local law policies 4
review of existing local laws and existing local law 5
`Preliminary
policies to identify likely anti-competitive provisions 6
`803D.(1) A local government must carry out a preliminary review of its 7
existing local laws and existing local law policies and identify any provision 8
that it considers may be an anti-competitive provision (a "likely 9
anti-competitive provision"). 10
`(2) The local government must advise the Minister of the likely 11
anti-competitive provisions. 12
of preliminary review and advice to Minister 13
`Timing
`803E. A local government must comply with section 803D by-- 14
(a) for a local government that carries on a type 1 or 2 business 15
activity56-- 16
(i) for existing local laws or existing local law policies made 17
before the commencement of this section--31 July 1997; or 18
(ii) for existing local laws or existing local law policies made 19
after the commencement--31 December 1997; or 20
(b) for other local governments--31 December 1997. 21
government may decide likely anti-competitive provision is not 22
`Local
an anti-competitive provision 23
`803F.(1) This section applies if a local government, at any time before 24
1 January 1998, decides that a likely anti-competitive provision is not an 25
anti-competitive provision. 26
56 Section 458AB defines type 1 business activity and type 2 business activity.
s 54 166 s 54
Local Government Legislation Amendment
`(2) The local government must, before 1 January 1998, advise the 1
Minister that the likely anti-competitive provision is not an anti-competitive 2
provision and the reasons why it is not an anti-competitive provision. 3
interest test of possible anti-competitive provisions 4
`Public
`803G.(1) In this section-- 5
"possible anti-competitive provision" means, if a local government has 6
carried out a preliminary review of an existing local law or an existing 7
local law policy under section 803D, the likely anti-competitive 8
provisions advised to the Minister under that section other than 9
provisions the Minister has been advised under section 803F are not 10
anti-competitive provisions. 11
`(2) A local government must ensure a public interest test is carried out 12
and a public interest test report prepared for each of its possible 13
anti-competitive provisions. 14
`(3) A public interest test report must, for each possible anti-competitive 15
provision, recommend-- 16
(a) that the provision should be retained as it is not an 17
anti-competitive provision; or 18
(b) for a provision that the report identifies as being an 19
anti-competitive provision--that the whole or part of the 20
provision-- 21
(i) in the public interest, should be retained (whether in its 22
current or another form); or 23
(ii) should be repealed or amended to remove its 24
anti-competitive effect. 25
`(4) For subsection (3), it is in the public interest for an anti-competitive 26
provision to be retained (whether in its current or another form) if-- 27
(a) the benefits of the provision to the community as a whole 28
outweigh the costs; and 29
(b) the most appropriate way of achieving the objectives of the local 30
law or local law policy is by restricting competition in the way 31
provided in the provision. 32
s 54 167 s 54
Local Government Legislation Amendment
government to decide on test and report process 1
`Local
`803H.(1) The local government must decide-- 2
(a) how the public interest test is to be conducted; and 3
(b) the matters with which the public interest test report must deal. 4
`(2) The decision must provide for a consultation process for the public 5
interest test and state how the process is to be used in the test. 6
7
Example--
8
A local government may decide that the consultation process concerning possible
9
anti-competitive provisions must include--
10
(a) giving notice of the test and inviting submissions about the test; and
11
(b) a period for submissions to be received; and
12
(c) direct consultation with interested parties; and
13
(d) consideration of the submissions received about the test.
`(3) The decision is subject to a regulation under section 803O.57 14
interest test report to be presented to local government 15
`Public
meeting 16
`803I. As soon as practicable after a public interest test report is 17
completed, it must be presented to a meeting of the local government. 18
government to resolve whether to implement recommendations 19
`Local
of public interest test 20
`803J.(1) After a public interest test report has been presented to a 21
meeting of a local government, the local government must resolve whether 22
to implement the recommendations of the report. 23
`(2) A local government may only make a contrary resolution if the local 24
government resolves-- 25
(a) the benefits of the provision to the community as a whole 26
outweigh the costs; and 27
57 Section 803O (Transitional regulation making power about implementation of
this division)
s 54 168 s 54
Local Government Legislation Amendment
(b) the most appropriate way of achieving the objectives of the 1
existing local law or existing local law policy is by restricting 2
competition in the way provided in the provision. 3
`(3) A resolution under subsection (2) must include a statement of the 4
reasons for finding-- 5
(a) the benefits of the provision to the community as a whole 6
outweigh the costs; and 7
(b) the most appropriate way of achieving the objectives of the 8
existing local law or existing local law policy is by restricting 9
competition in the way provided in the provision. 10
`(4) As soon as practicable after making a resolution under this section, 11
the local government must advise the Minister of its resolution. 12
`(5) In this section-- 13
"contrary resolution" means a resolution by a local government to-- 14
(a) retain an anti-competitive provision of an existing local law or 15
existing local law policy despite a recommendation in a public 16
interest test report that the provision should be repealed; or 17
(b) amend an anti-competitive provision of an existing local law or 18
existing local law policy contrary to a recommendation in a public 19
interest test report. 20
interest test reports open to inspection 21
`Public
`803K. From the day the public interest test report is presented to a 22
meeting of a local government, the report must be open to inspection. 23
or amendment of anti-competitive provision 24
`Repeal
`803L.(1) If a local government resolves to repeal or amend an 25
anti-competitive provision of an existing local law under this division, it 26
must, by resolution, make a local law repealing or amending the provision. 27
`(2) If a local government resolves to repeal or amend an 28
anti-competitive provision of an existing local law policy under this 29
division, it must, by resolution, make a local law policy repealing or 30
amending the provision. 31
s 54 169 s 54
Local Government Legislation Amendment
`(3) A notice of the making of the local law or a local law policy must be 1
published in the gazette stating the following-- 2
(a) the name of the local government making the local law or local 3
law policy; 4
(b) the name of the local law or local law policy; 5
(c) the date of the local government's resolution making the local law 6
or local law policy; 7
(d) the name of the existing local law or existing local law policy; 8
(e) that an anti-competitive provision of the existing local law or 9
existing local law policy has been identified; 10
(f) that the provision has been repealed or amended; 11
(g) that a certified copy of the local law or local law policy is open to 12
inspection at the local government's public office and at the 13
department's state office. 14
`(4) The local government's chief executive officer must certify the 15
required number of copies of the local law or local law policy to be the local 16
law or local law policy as made by the local government. 17
`(5) As soon as practicable after the making of the local law or local law 18
policy, the local government must give the Minister-- 19
(a) a copy of the notice; and 20
(b) the required number of certified copies of the local law or local 21
law policy. 22
`(6) Chapter 8, part 258 does not apply to a local law or local law policy 23
made under this section. 24
for resolution and implementation 25
`Timing
`803M. For an existing local law or local law policy, a local government 26
must make a resolution under section 803J and, if necessary, implement the 27
resolution under section 803L, before 1 July 1999. 28
58 Chapter 8 (Local laws and local law policies), part 2 (Making local laws and
local law policies)
s 54 170 s 54
Local Government Legislation Amendment
action under division 3 and other provisions 1
`Simultaneous
`803N. Actions under this division may be carried out in conjunction 2
with or as part of action carried out under division 3 or chapter 8, part 2, 3
division 5. 4
regulation making power about implementation of this 5
`Transitional
division 6
`803O. A regulation may prescribe-- 7
(a) the procedures to be followed and criteria to be used to identify 8
possible anti-competitive provisions of existing local laws or 9
existing local law policies; and 10
(b) requirements for public interest tests and public interest test 11
reports; and 12
(c) the giving of information by local governments to the Minister. 13
identification and assessment of anti-competitive provisions 14
`Future
`803P.(1) This section applies to a local law or local law policy for which 15
a local government has resolved, under this division or chapter 8, part 2, 16
division 5, to retain an anti-competitive provision. 17
`(2) Within 10 years after making the resolution, the local government 18
must act under this division in relation to the local law or local law policy. 19
`(3) In applying this division for subsection (2)-- 20
(a) references to an "existing local law" means the local law to 21
which the division is being applied under this section; and 22
(b) references to an "existing local law policy" means the local law 23
policy to which the division is being applied under this section; 24
and 25
(c) despite sections 803E and 803F, all actions to be taken under this 26
division must be completed within 10 years after the making of 27
the resolution.'. 28
s 55 171 s 59
Local Government Legislation Amendment
PART 4--AMENDMENT OF WHISTLEBLOWERS 1
PROTECTION ACT 1994 2
amended in pt 4 3
Act
Clause 55. This part amends the Whistleblowers Protection Act 1994. 4
of s 7 (What is the general nature of the Act's scheme?) 5
Amendment
Clause 56. Section 7(2)(e), after `GOCs'-- 6
insert-- 7
`or corporatised corporations'. 8
of s 10 (How must a public interest disclosure be made 9
Amendment
(pt 4)?) 10
Clause 57. Section 10-- 11
insert-- 12
`(7) Part 4, division 6 provides for the application of the Act to 13
corporatised corporations in a way intended to prevent the Act's 14
administration adversely affecting corporatised corporation's commercial 15
operations.'. 16
of s 26 (Every public sector entity is an appropriate 17
Amendment
entity for certain things) 18
Clause 58. Section 26(2),`or 5'-- 19
omit, insert-- 20
`, 5 or 6'. 21
of s 27 (How to disclose to appropriate entity) 22
Amendment
Clause 59. Section 27(6),`Division 4 and 5'-- 23
s 60 172 s 62
Local Government Legislation Amendment
omit, insert-- 1
`divisions 4 to 6'. 2
of s 30 (Units must report to Legislative Assembly on 3
Amendment
disclosures) 4
Clause 60.(1) Section 30(1), definition "public sector entity"-- 5
insert-- 6
`(d) a corporatised corporation.'. 7
of s 31 (Minister must report to Legislative Assembly on 8
Amendment
Act's administration) 9
Clause 61.(1) Section 31(1), definition "public sector entity"-- 10
insert-- 11
`(d) a corporatised corporation.'. 12
of new pt 4, div 6 13
Insertion
Clause 62. After section 37-- 14
insert-- 15
`Division 6--Limitation on disclosure process for corporatised 16
corporations 17
of division 18
`Object
`37A.(1) This division deals with some issues about the treatment of 19
corporatised corporations as public sector entities and their officers as public 20
officers under this Act. 21
`(2) The purpose of the division is to clarify the application of this Act 22
and to ensure this Act's administration does not detrimentally affect the 23
commercial operation of corporatised corporations. 24
s 62 173 s 62
Local Government Legislation Amendment
of Act to corporatised corporations 1
`Application
`37B.(1) An officer of a corporatised corporation may, under section 15, 2
16 or 18, 59 make a public interest disclosure to the corporatised corporation 3
about its conduct or the conduct of another officer of the corporatised 4
corporation. 5
`(2) An officer of a corporatised corporation may, under section 15, 6
make a public interest disclosure to the Criminal Justice Commission about 7
the conduct of the corporatised corporation or the conduct of another officer 8
of the corporatised corporation. 9
`(3) An officer of a corporatised corporation may, under section 17,60 10
make a public interest disclosure to the corporatised corporation about its 11
conduct, the conduct of another officer of the corporatised corporation or the 12
conduct of a public sector contractor contracting with the corporatised 13
corporation. 14
`(4) An officer of a corporatised corporation may also make a public 15
interest disclosure about a reprisal taken against the officer for making the 16
public interest disclosure under subsection (1) or (3)-- 17
(a) under section 26(3),61 to the corporatised corporation; or 18
(b) if the reprisal is official misconduct--to the Criminal Justice 19
Commission. 20
`(5) For public interest disclosures under subsections (1) to (4) and of 21
applying any law about the disclosures-- 22
(a) the corporatised corporation is a public sector entity; and 23
(b) the officer making the public interest disclosure is a public officer; 24
and 25
(c) if the public interest disclosure is made under section 17 about the 26
conduct of another officer of the corporatised corporation--the 27
59 Section 15 (Public officer may disclose official misconduct), 16 (Public officer
may disclose maladministration) or 18 (Public officer may disclose danger to
public health or safety or environment)
60 Section 17 (Public officer may disclose negligent or improper management
affecting public funds)
61 Section 26 (Every public sector entity is an appropriate entity for certain things)
s 63 174 s 63
Local Government Legislation Amendment
other officer is a public officer. 1
`(6) Other than as provided by subsection (5)-- 2
(a) a corporatised corporation is not a public sector entity under this 3
Act; and 4
(b) an officer of a corporatised corporation is not a public officer 5
under this Act; and 6
(c) an officer of a corporatised corporation cannot, as a public officer, 7
make a public interest disclosure. 8
`(7) This section does not affect the making of a public interest disclosure 9
by anybody under section 19 or 20.62 10
`(8) This section does not affect the reference under section 2863-- 11
(a) from a corporatised corporation to another public sector entity of 12
a public interest disclosure made to the corporatised corporation 13
under this section; or 14
(b) from a public sector entity to a corporatised corporation of a 15
public interest disclosure made to the public sector entity.'. 16
of sch 5 (Sectional definitions) 17
Amendment
Clause 63.(1) Schedule 5, section 2(1)-- 18
insert-- 19
`(l) a corporatised corporation, but only to the extent indicated under 20
part 4, division 6 of the Act.'. 21
(2) Schedule 5, section 2(2)-- 22
insert-- 23
`(aa) a corporatised corporation, other than to the extent indicated under 24
part 4, division 6 of the Act;'. 25
62 Section 19 (Anybody may disclose danger to person with disability or to
environment from particular contraventions) or 20 (Anybody may disclose
reprisal)
63 Section 28 (Disclosure may be referred to an appropriate entity)
s 64 175 s 67
Local Government Legislation Amendment
of sch 6 (Dictionary) 1
Amendment
Clause 64. Schedule 6-- 2
insert-- 3
` "corporatised corporation" has the same meaning as in the Local 4
Government Act 1993, chapter 7A, part 6.'. 5
ART 5--AMENDMENT OF PUBLIC SECTOR 6
P
ETHICS ACT 1994 7
amended in pt 5 8
Act
Clause 65. This part amends the Public Sector Ethics Act 1994. 9
of s 2 (Definitions) 10
Amendment
Clause 66.(1) Section 2, definition "public sector entity"-- 11
insert-- 12
`(ha)a corporatised corporation;'. 13
(2) Section 2-- 14
insert-- 15
` "corporatised corporation" has the same meaning as in the Local 16
Government Act 1993, chapter 7A, part 6.'. 17
PART 6--AMENDMENT OF PUBLIC SERVICE ACT 18
1996 19
amended in pt 6 20
Act
Clause 67. This part amends the Public Service Act 1996. 21
s 68 176 s 72
Local Government Legislation Amendment
of s 21 (What is a "government entity") 1
Amendment
Clause 68. Section 21(2)(a)-- 2
omit, insert-- 3
`(a) a local government or a corporatised corporation;'. 4
of sch 3 (Dictionary) 5
Amendment
Clause 69. Schedule 3-- 6
insert-- 7
` "corporatised corporation" has the meaning given by the Local 8
Government Act 1993, chapter 7A, part 6.'. 9
ART 7--AMENDMENT OF FREEDOM OF 10
P
INFORMATION ACT 1992 11
amended in pt 7 12
Act
Clause 70. This part amends the Freedom of Information Act 1992. 13
of s 7 (Definitions) 14
Amendment
Clause 71. Section 7-- 15
insert-- 16
` "corporatised corporation" has the meaning given by the Local 17
Government Act 1993, chapter 7A, part 6.'. 18
of new s 11B 19
Insertion
Clause 72. After section 11A-- 20
insert-- 21
s 73 177 s 75
Local Government Legislation Amendment
of Act to corporatised corporations 1
`Application
`11B. This Act does not apply to documents received, or brought into 2
existence, in carrying out a corporatised corporation's activities to the extent 3
provided under the Local Government Act 1993, section 793B.'. 4
PART 8--AMENDMENT OF JUDICIAL REVIEW ACT 5
1991 6
amended in pt 8 7
Act
Clause 73. This part amends the Judicial Review Act 1991. 8
of s 3 (Definitions) 9
Amendment
Clause 74. Section 3-- 10
insert-- 11
` "corporatised corporation" has the meaning given by the Local 12
Government Act, chapter 7A, part 6.'. 13
of new s 18B 14
Insertion
Clause 75. After section 18A-- 15
insert-- 16
of Act to corporatised corporations 17
`Application
`18B. This Act does not apply to decisions of a corporatised corporation 18
to the extent provided under the Local Government Act 1993, 19
section 793B.'. 20
21
178
Local Government Legislation Amendment
CHEDULE 1
¡S
MINOR AND CONSEQUENTIAL AMENDMENTS OF 2
LOCAL GOVERNMENT ACT 1993 3
section 13 4
1. Section 7-- 5
insert-- 6
`(4) This section does not apply to section 458IL.'. 7
2. Section 77(2), `not being'-- 8
omit, insert-- 9
`being'. 10
3. Section 174(2), after ` "local government employee" '-- 11
insert-- 12
`includes an employee of a local government's significant business entity 13
but'. 14
4. Sections 458BB(2)(a)(i) and 458BC(2)(a)(i) (as renumbered), 15
`Commonwealth, State and local government taxes or rates'-- 16
omit, insert-- 17
`government taxes'. 18
5. Section 458BD (as renumbered), `458G(2)(a)'-- 19
omit, insert-- 20
`section 458BC(2)(a)'. 21
179
Local Government Legislation Amendment
SCHEDULE (continued)
6. Section 458BE as renumbered, `458D or 458E'-- 1
omit, insert-- 2
`458B or 458BA'. 3
7. Section 458BH(3) as renumbered, `458I'-- 4
omit, insert-- 5
`458BE'. 6
8. Section 458BH(3) as renumbered, `458M'-- 7
omit, insert-- 8
`458BJ'. 9
10
© State of Queensland 1997
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