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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Electricity Corporations Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
Part 2 -- Electricity Corporations
Division 1 -- Establishment of corporations
4. Corporations established 5
5. Corporations not agents of the State 5
6. Corporations and officers not part of Public Service 5
7. Head office of Regional Power Corporation 6
Division 2 -- Boards of directors
8. Boards of directors 6
9. Role of boards 7
10. Provisions about the constitution and proceedings of
boards 7
11. Remuneration 7
12. Conflict of duties 7
13. Committees 8
Division 3 -- Staff
Subdivision 1 -- Chief executive officer
14. Appointment 8
15. Role of chief executive officer 9
16. Resignation 9
17. Acting appointments 9
Subdivision 2 -- Other staff
18. Powers in relation to staff 9
039--4 page i
Electricity Corporations Bill 2005
Contents
19. Certain industrial matters excluded from employment
agreements 10
20. Designation of executive officers 11
Subdivision 3 -- Minimum standards for staff
management
21. Standards to be set out in instrument 11
22. Reports to Commissioner for Public Sector Standards 12
Subdivision 4 -- Joint policy on staff transfers
23. Corporations to have joint policy approved by
Minister 12
24. Amendment of policy statement 13
25. Consultation with staff 13
Subdivision 5 -- General
26. Superannuation 14
Division 4 -- Duties of, and relating to, directors
and staff
27. Duties of, and relating to, directors 15
28. Chief executive officer, duties imposed 15
29. Executive officers, duties imposed 15
30. Members of staff, duties imposed 15
31. Codes of conduct 16
32. Reports to Commissioner for Public Sector Standards 16
33. Reports to Minister 17
Part 3 -- Functions and powers of
corporations
Division 1 -- Functions, powers and related
provisions
Subdivision 1 -- Preliminary
34. Terms used in this Division 18
Subdivision 2 -- Electricity Generation
Corporation
35. Principal functions 19
36. Other functions 20
37. Restriction on area in which corporation may operate 20
38. Restriction on sale of electricity to consumers 21
39. Review of restriction 21
40. Extension of designated period 22
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Electricity Corporations Bill 2005
Contents
Subdivision 3 -- Electricity Networks Corporation
41. Principal functions 22
42. Other functions 23
43. Restriction on area in which corporation may operate 24
Subdivision 4 -- Electricity Retail Corporation
44. Principal functions 24
45. Other functions 25
46. Restriction on area in which corporation may operate 25
47. Prohibition on generation of electricity for a
designated period 25
48. Review of prohibition 26
49. Extension of designated period 26
Subdivision 5 -- Regional Power Corporation
50. Principal functions 27
51. Other functions 28
52. Restriction on area in which corporation may operate 28
Subdivision 6 -- Special function in respect of
certain assets and liabilities
53. Administration under delegated power 29
Subdivision 7 -- Use of distribution systems for the
retail supply of electricity
54. Electricity Networks Corporation and Regional Power
Corporation not to supply services for certain
purposes 30
55. Review as to introduction of further retail competition 31
Subdivision 8 -- Provisions applying to functions
of all corporations
56. Corporations may act at their discretion 32
57. Where corporation may operate 32
58. Corporation to act in accordance with policy
instruments 32
59. Powers 32
60. Certain works exempt from planning laws 34
61. Corporation to act on commercial principles 36
62. Segregation of functions of corporations 36
63. Interruption or restriction of supply 37
64. Acquisition of subsidiary 38
65. Control of subsidiary 38
66. Corporations Act, effect of section 65 39
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Electricity Corporations Bill 2005
Contents
67. Disposals that require a Ministerial order 39
68. Other transactions that require Ministerial approval 40
69. Exemptions from section 68 41
70. Minister to be consulted on major initiatives 42
71. Delegation 42
Division 2 -- Role of Economic Regulation
Authority
72. Advisory function 43
73. Public consultation 43
74. Advice to be published 44
Division 3 -- Arrangements authorised or
approved by Governor
75. Governor may make certain regulations 44
Division 4 -- Protection of persons dealing with a
corporation
76. Person dealing with corporation may make
assumptions 45
77. Third party may make assumptions 45
78. Assumptions that may be made 45
79. Exception to sections 76 and 77 46
Part 4 -- Operation of corporations,
imposition of requirements
80. Meaning of terms used in this Part 48
81. Object of this Part 48
82. Minister may prescribe contracts 48
83. Matters that may be provided for 48
84. Amendment and cancellation 49
85. Enforcement 50
86. Advice of Economic Regulation Authority to be
obtained 50
87. Trade practices exemption 50
Part 5 -- Provisions about
accountability
Division 1 -- Strategic development plans
88. Draft strategic development plan to be submitted to
Minister 51
89. Transitional provision 51
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Electricity Corporations Bill 2005
Contents
90. Matters to be included in strategic development plan 51
91. Strategic development plan to be agreed if possible 52
92. Minister's powers in relation to draft strategic
development plan 53
93. Strategic development plan pending agreement 53
94. Minister's agreement to draft strategic development
plan 54
95. Modifications of strategic development plan 54
96. Concurrence of Treasurer 54
Division 2 -- Statement of corporate intent
97. Draft statement of corporate intent to be submitted to
Minister 55
98. Transitional provision 55
99. Matters to be included in statement of corporate intent 55
100. Statement of corporate intent to be agreed if possible 57
101. Minister's powers in relation to draft statement of
corporate intent 57
102. Statement of corporate intent pending agreement 58
103. Minister's agreement to draft statement of corporate
intent 58
104. Modifications of statement of corporate intent 59
105. Concurrence of Treasurer 60
Division 3 -- Quarterly and annual reports
106. Quarterly reports 60
107. Annual reports 61
108. Contents of annual reports 62
109. Deletion of commercially sensitive matters from
reports 63
Division 4 -- Ministerial directions
110. Directions to corporation 63
111. Directions generally 63
112. Directions contrary to commercial interest 64
113. When directions take effect 65
114. Directions relating to the supply of gas 65
Division 5 -- Consultation and provision of
information
115. Consultation 66
116. Minister to have access to information 66
117. Provision of information in compiled form 67
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Electricity Corporations Bill 2005
Contents
118. Minister to be kept informed 68
119. Notice of financial difficulty 69
Division 6 -- Protection from liability
120. No liability for certain acts or omissions 70
Part 6 -- Financial provisions
Division 1 -- General
121. Bank account 71
122. Investment 71
123. Exemption from rates 71
Division 2 -- Payments to State
124. Payment of amount in lieu of rates 71
125. Determination of amounts under section 124 72
126. Dividend 72
Division 3 -- Borrowing
127. Borrowing 73
128. Borrowing limits 74
129. Hedging transactions 75
Division 4 -- Guarantees
130. Guarantees 76
131. Charges for guarantee 76
Division 5 -- Financial administration and audit
132. Limited application of Financial Administration and
Audit Act 1985 77
133. Financial administration and audit 77
Part 7 -- Miscellaneous
134. Supplementary provision for laying document before
Parliament 79
135. Execution of documents 79
136. Contract formalities 80
137. Delegation by Treasurer 81
138. Regulations 81
Part 8 -- Amendments to other written
laws
139. Amendments to other Acts 82
140. Power to amend subsidiary legislation 82
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Electricity Corporations Bill 2005
Contents
Part 9 -- Transitional provisions for
succession from Western Power
Corporation to new corporations
Division 1 -- Preliminary
141. Purpose of this Part 83
142. Terms used in this Part 83
143. Saving 85
Division 2 -- Powers conferred on Minister
144. Power for certain agreements to be made before
commencement day 85
145. Minister may give directions 86
146. Directions to be laid before Parliament 87
Division 3 -- Passing of Western Power
Corporation's assets and liabilities to new
corporations or the State
Subdivision 1 -- Making of transfer orders
147. Minister to make order for allocation of assets and
liabilities 87
148. Order may provide for transfer to subsidiary 88
149. Transfer order schedules 89
150. Treatment of certain internal arrangements of Western
Power Corporation 89
151. Power to make subsequent order 90
152. References in Government agreements 90
153. Amendment of transfer orders 91
Subdivision 2 -- Operation of transfer orders
154. Allocation to one new corporation 92
155. Order for transfer to subsidiary 93
156. Allocation to more than one new corporation 94
157. Replacement of Western Power Corporation in
proceedings 96
158. Handing over of records 97
159. Changes to Government agreements 97
Subdivision 3 -- Re-allocation of assets, rights and
liabilities
160. Order for re-allocation 97
161. Re-allocation to have effect from commencement day 99
162. Handing over of records 100
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Electricity Corporations Bill 2005
Contents
Subdivision 4 -- Order that allocated assets or
liabilities pass instead to the State
163. Minister may order that section 169 is to apply 100
164. Effect of order 101
165. Handing over of records 102
Subdivision 5 -- Replacement of party in
proceedings
166. Order for replacement 103
167. Effect of order 103
168. Handing over of records 104
Subdivision 6 -- Assets, liabilities and proceedings
not otherwise provided for
169. Unallocated assets and liabilities to be dealt with by
Minister 104
170. Provisions incidental to section 169 105
171. State to be party to proceedings if no provision made 106
172. Handing over of records 107
Subdivision 7 -- Other matters relating to passing
of assets and liabilities
173. Continuation of guarantees in respect of Western
Power Corporation 107
174. Guarantees to which section 173 does not apply 108
175. Certain joint tenancies preserved 109
176. Western Power Corporation to complete necessary
transactions 109
177. Exemption from State taxation 110
178. Registration of documents 111
Division 4 -- Staff
179. Transition of employment 112
180. Employees' rights preserved 112
Division 5 -- Contracts with tariff customers
181. Minister to prescribe contracts 113
Division 6 -- Other transitional provisions
182. Annual report 114
183. Continuation of certain directions given to Western
Power Corporation 114
184. Completion of things commenced 115
185. Continuing effect of things done 115
186. Immunity to continue 115
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Electricity Corporations Bill 2005
Contents
187. Agreements and instruments generally 116
188. Western Power Corporation to perform necessary
transitional functions 116
Division 7 -- Making of further provision by
regulation
189. Powers of rectification and similar matters 117
190. Further provision may be made by regulation 118
191. Regulations may operate from the commencement day 118
Division 8 -- Indemnities and guarantees
192. Treasurer may give indemnity and guarantee 119
Schedule 1 -- Provisions about the
constitution and proceedings of
boards 121
1. Meaning of "director" 121
2. Term of office 121
3. Resignation and removal 121
4. Chairperson and deputy chairperson 121
5. Alternate directors 122
6. Meetings 123
7. Telephone and video meetings 123
8. Resolution may be passed without meeting 123
9. Minutes and records 124
10. Leave of absence 125
11. Board to determine own procedures 125
Schedule 2 -- Provisions about the
duties of directors and related
provisions 126
Division 1 -- Preliminary 126
1. Attempts to commit offences 126
Division 2 -- Certain duties stated 126
2. Duty to act honestly 126
3. Duty to exercise reasonable care and diligence 126
4. Duty not to make improper use of information 127
5. Duty not to make improper use of position 127
6. Fiduciary duty 128
Division 3 -- Recovery from director 128
page ix
Electricity Corporations Bill 2005
Contents
7. Payment of compensation may be ordered 128
8. Civil proceedings for recovery from director 128
Division 4 -- Relief from liability 129
9. Court may grant relief 129
10. Application for relief 129
11. Case may be withdrawn from jury 129
Division 5 -- Personal interests of directors,
disclosure and voting 130
12. Disclosure 130
13. Voting by interested directors 130
Division 6 -- Other prohibited conduct 131
14. Prohibition on loans to directors and related persons 131
15. Directors and auditors not to be indemnified for
certain matters 132
16. False or misleading information 133
Schedule 3 -- Provisions to be included
in constitution of subsidiary 136
1. Disposal of shares 136
2. Directors 136
3. Further shares 136
4. Subsidiaries of subsidiary 136
Schedule 4 -- Financial administration
and audit 138
Division 1 -- Preliminary 138
1. Meaning of terms used in this Schedule 138
Division 2 -- Financial records 138
2. Obligation to keep financial records (cf. Corporations
Act s. 286) 138
3. Physical format (cf. Corporations Act s. 288) 138
4. Place where records are kept (cf. Corporations Act
s. 289) 139
5. Director access (cf. Corporations Act s. 290) 139
Division 3 -- Financial reporting 140
Subdivision 1 -- Annual financial reports and
directors' reports
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Electricity Corporations Bill 2005
Contents
6. Preparation of annual financial reports and directors'
reports (cf. Corporations Act s. 292) 140
7. Contents of annual financial report (cf. Corporations
Act s. 295) 140
8. Compliance with accounting standards and
regulations (cf. Corporations Act s. 296) 141
9. True and fair view (cf. Corporations Act s. 297) 141
10. Annual directors' report (cf. Corporations Act s. 298) 141
11. Annual directors' report -- general information (cf.
Corporations Act s. 299) 142
12. Annual directors' report -- specific information (cf.
Corporations Act s. 300) 143
13. Annual directors' report -- other specific information
(cf. Corporations Act s. 300A) 145
14. Audit of annual financial report (cf. Corporations Act
s. 301) 145
Subdivision 2 -- Audit and auditor's report
15. Audit opinion (cf. Corporations Act s. 307) 145
16. Auditor General's report on annual financial report
(cf. Corporations Act s. 308) 146
17. Auditor General's power to obtain information (cf.
Corporations Act s. 310) 147
18. Assisting Auditor General (cf. Corporations Act
s. 312) 147
Subdivision 3 -- Special provisions about
consolidated financial statements
19. Directors and officers of controlled entity to give
information (cf. Corporations Act s. 323) 147
20. Auditor General's power to obtain information from
controlled entity (cf. Corporations Act s. 323A) 147
21. Controlled entity to assist the Auditor General (cf.
Corporations Act s. 323B) 148
22. Application of subdivision to entity that has ceased to
be controlled (cf. Corporations Act s. 323C) 148
Subdivision 4 -- Financial years of the corporation
and the entities it controls
23. Financial years (cf. Corporations Act s. 323D) 148
Division 4 -- Accounting standards 149
24. Accounting standards (cf. Corporations Act s. 334) 149
page xi
Electricity Corporations Bill 2005
Contents
25. Equity accounting (cf. Corporations Act s. 335) 149
26. Interpretation of accounting standards (cf.
Corporations Act s. 337) 149
27. Evidence of text of accounting standard (cf.
Corporations Act s. 339) 149
Division 5 -- Exemptions and modifications 150
28. Treasurer's power to make specific exemption orders
(cf. Corporations Act s. 340) 150
29. Criteria for specific exemption orders and class orders
(cf. Corporations Act s. 342) 151
30. Extension of time 151
Division 6 -- Sanctions for contraventions of this
Schedule 152
31. Contravention of Divisions 2 and 3 (cf. Corporations
Act s. 344) 152
Division 7 -- Miscellaneous 152
32. Deadline for reporting to the Minister (cf.
Corporations Act s. 315) 152
33. Annual financial reporting to the Minister (cf.
Corporations Act s. 314) 152
34. Audit 153
35. Powers and duties of the Auditor General 153
Schedule 5 -- Amendments to other
Acts 154
Division 1 -- Constitution Acts Amendment Act 1899 154
1. The Act amended 154
2. Schedule V amended 154
Division 2 -- Economic Regulation Authority
Act 2003 155
3. The Act amended 155
4. Section 20 amended 155
Division 3 -- Electricity Act 1945 155
5. The Act amended 155
6. Section 5 amended 155
Division 4 -- Electricity Corporation Act 1994 156
7. The Act amended 156
8. Long title amended 156
page xii
Electricity Corporations Bill 2005
Contents
9. Section 1 amended 156
10. Sections 2 and 3 replaced by section 2 156
11. Parts 2, 3, 4 and 5 repealed 157
12. Part 6 heading replaced 157
13. Section 89 amended 158
14. Sections 92 and 93 repealed 159
15. Section 94 amended 159
16. Section 95 amended 160
17. Section 95A amended 160
18. Section 96 inserted 161
19. Part 7 and Schedules 1, 2, 3 and 4 repealed 161
20. Schedule 5 amended 161
21. Schedule 6 amended 166
22. Schedule 7 repealed and saving provisions 170
Division 5 -- Electricity Industry Act 2004 170
23. The Act amended 170
24. Section 3 amended 170
25. Section 12 amended 171
26. Section 31 amended 171
27. Section 39 amended 172
28. Section 39A inserted 172
29. Section 45 amended 175
30. Section 46 amended 175
31. Sections 54A and 54B inserted 176
32. Sections 55 and 56 repealed 178
33. Section 60 amended 178
34. Section 71 amended 179
35. Section 106 amended 179
36. Section 119 amended 180
37. Part 9A inserted 180
Division 6 -- Energy Corporations (Transitional and
Consequential Provisions) Act 1994 186
38. The Act amended 186
39. Section 50 amended 186
Division 7 -- Energy Operators (Powers) Act 1979 187
40. The Act amended 187
41. Section 4 amended 187
42. Section 124 amended 188
Division 8 -- Equal Opportunity Act 1984 189
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Electricity Corporations Bill 2005
Contents
43. The Act amended 189
44. Section 139 amended 189
Division 9 -- Gas Pipelines Access (Western
Australia) Act 1998 190
45. The Act amended 190
46. Section 80 amended 190
Division 10 -- Land Administration Act 1997 191
47. The Act amended 191
48. Section 160 amended 191
Division 11 -- Metropolitan Region Town Planning
Scheme Act 1959 192
49. The Act amended 192
50. Second Schedule amended 192
Division 12 -- Public Sector Management Act 1994 192
51. The Act amended 192
52. Schedule 1 amended 192
Division 13 -- Public Works Act 1902 193
53. The Act amended 193
54. Section 5A amended 193
55. Section 5B amended 193
Division 14 -- State Records Act 2000 194
56. The Act amended 194
57. Schedule 3 amended 194
Division 15 -- Town Planning and Development
Act 1928 194
58. The Act amended 194
59. Section 27A amended 194
Defined Terms
page xiv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Electricity Corporations Bill 2005
A Bill for
An Act --
• to establish 3 corporations in place of Western Power
Corporation each with particular responsibilities relating to the
provision of electricity in the South West of the State, and a
corporation in place of Western Power Corporation with
responsibility for the provision of electricity outside the South
West of the State;
• to provide for the passing of the assets and liabilities of Western
Power Corporation to the new corporations or to the State and
for other transitional matters;
• to amend and rename the Electricity Corporation Act 1994, and to
amend other Acts, as a consequence of Western Power
Corporation being replaced by the new corporations,
and to make related provisions.
The Parliament of Western Australia enacts as follows:
page 1
Electricity Corporations Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Electricity Corporations Act 2005.
2. Commencement
5 (1) Except as stated in subsection (2), this Act comes into operation
on the day on which it receives the Royal Assent.
(2) The provisions of --
(a) Parts 2, 3, 4, 5, 6, 7 and 8;
(b) Part 9, other than sections 141, 142, 144, 145, 146, 147,
10 148, 149, 150, 151, 152, 153(1) and 179; and
(c) Schedules 1, 2, 3, 4 and 5,
come into operation on a day fixed by proclamation.
(3) Different days may be fixed under subsection (2) for different
provisions.
15 (4) A day is not to be fixed for the purposes of subsection (2) until
the Minister is of the opinion that the transfer order or transfer
orders required by section 147(1) has or have been made.
3. Terms used in this Act
(1) In this Act, unless the contrary intention appears --
20 "board" means a board of directors provided for by section 8;
"chief executive officer" means an officer appointed under
section 14 and, except in sections 14 and 16, includes an
acting chief executive officer appointed under section 17;
"Commissioner for Public Sector Standards" means the
25 person for the time being holding the office created by the
Public Sector Management Act 1994 section 16(1);
"corporation" means a body established by section 4(1);
page 2
Electricity Corporations Bill 2005
Preliminary Part 1
s. 3
"Corporations Act" means the Corporations Act 2001 of the
Commonwealth;
"director" means a member of a board;
"Economic Regulation Authority" means the Economic
5 Regulation Authority established by the Economic
Regulation Authority Act 2003;
"electricity" includes electrical energy of any kind however
produced, stored, transported or consumed;
"Electricity Generation Corporation" means the body
10 established by section 4(1)(a);
"Electricity Networks Corporation" means the body
established by section 4(1)(b);
"Electricity Retail Corporation" means the body established
by section 4(1)(c);
15 "executive officer" means a member of the staff of a
corporation designated under section 20 as an executive
officer;
"function" includes powers, duties and authorities, except in --
(a) Part 3 Division 1 Subdivisions 1 to 6; and
20 (b) sections 56 and 59;
"gas" means any gas or mixture of gases, whether naturally
occurring or manufactured, intended for use --
(a) as a fuel; or
(b) in any chemical process;
25 "member of staff " means a person engaged under section 18;
"non-executive director", in relation to a corporation, means a
director other than the chief executive officer if he or she is
a director of the corporation;
"Regional Power Corporation" means the body established by
30 section 4(1)(d);
page 3
Electricity Corporations Bill 2005
Part 1 Preliminary
s. 3
"South West interconnected system" means the
interconnected transmission and distribution systems,
generating works and associated works --
(a) located in the South West of the State and extending
5 generally between Kalbarri, Albany and Kalgoorlie;
and
(b) into which electricity is supplied by one or more of
the electricity generation plants at Kwinana, Muja,
Collie and Pinjar,
10 as expanded or altered from time to time;
"subsidiary", in relation to a corporation, means --
(a) a body determined to be a subsidiary of the
corporation under subsection (2); and
(b) an interest or other rights of the corporation in a unit
15 trust, joint venture or partnership where the interest
or other rights of the corporation in connection with
the unit trust, joint venture or partnership entitle the
corporation to --
(i) control the composition of the governing body
20 of the unit trust, joint venture or partnership;
(ii) cast, or control the casting of, more than
one-half of the maximum number of votes
that might be cast at a general meeting of the
unit trust, joint venture or partnership; or
25 (iii) control the business affairs of the unit trust,
joint venture or partnership;
"Treasurer" means the Treasurer of the State.
(2) The Corporations Act Part 1.2 Division 6 applies for the
purpose of determining whether a body is a subsidiary of a
30 corporation.
page 4
Electricity Corporations Bill 2005
Electricity Corporations Part 2
Establishment of corporations Division 1
s. 4
Part 2 -- Electricity Corporations
Division 1 -- Establishment of corporations
4. Corporations established
(1) Each of the following is established as a body corporate with
5 perpetual succession --
(a) the Electricity Generation Corporation;
(b) the Electricity Networks Corporation;
(c) the Electricity Retail Corporation; and
(d) the Regional Power Corporation.
10 (2) Proceedings may be taken by or against a corporation in its
corporate name.
(3) A corporation may use, and operate under, one or more trading
names approved by the Minister being --
(a) an abbreviation or adaptation of its corporate name; or
15 (b) a name other than its corporate name.
5. Corporations not agents of the State
A corporation is not an agent of the State and does not have the
status, immunities and privileges of the State.
6. Corporations and officers not part of Public Service
20 (1) A corporation is not, and is not to become, a public sector body
under the Public Sector Management Act 1994.
(2) Neither --
(a) the chief executive officer; nor
(b) any member of staff,
25 of a corporation is to be included in the Senior Executive
Service provided for by the Public Sector Management
Act 1994.
page 5
Electricity Corporations Bill 2005
Part 2 Electricity Corporations
Division 2 Boards of directors
s. 7
7. Head office of Regional Power Corporation
The head office of the Regional Power Corporation is to be
located in a part of the State that is not served by the South
West interconnected system.
5 Division 2 -- Boards of directors
8. Boards of directors
(1) A corporation is to have a board of directors comprising not less
than 4, nor more than 6, persons appointed by the Governor on
the nomination of the Minister.
10 (2) The chief executive officer of a corporation may be a director of
the corporation.
(3) A member of staff of a corporation is not to be a director of the
corporation.
(4) In making nominations for appointment to the board of a
15 corporation the Minister is to ensure that --
(a) each nomination is made only after consultation with the
board; and
(b) in the case of an appointment to the board of the
Regional Power Corporation, a nominee is a person
20 ordinarily resident in a part of the State that is not served
by the South West interconnected system so far as is
necessary for the majority of the directors of the
corporation, at the time of the appointment, to be
persons so resident.
25 (5) Where a vacancy occurs in the membership of a board, the
board may recommend a candidate to the Minister.
(6) Subsection (4)(a) does not apply --
(a) to the initial appointments to a board; or
(b) where the nominee was recommended by a board under
30 subsection (5).
page 6
Electricity Corporations Bill 2005
Electricity Corporations Part 2
Boards of directors Division 2
s. 9
9. Role of boards
The board of a corporation --
(a) is its governing body; and
(b) in the name of the corporation and subject to this Act, is
5 to perform the functions, determine the policies and
control the affairs of the corporation.
10. Provisions about the constitution and proceedings of boards
Schedule 1 has effect with respect to the directors and the board
of a corporation.
10 11. Remuneration
(1) A non-executive director of a corporation is to be paid out of the
funds of the corporation such remuneration and allowances as
are determined by the Minister in the case of that corporation
and that director.
15 (2) Remuneration is not to be paid to a non-executive director who
holds a full-time office or position that is remunerated out of
moneys appropriated by Parliament.
12. Conflict of duties
(1) In subsection (2) --
20 "public service officer" means a person who is employed in
the Public Service under the Public Sector Management
Act 1994 Part 3.
(2) If a public service officer is a director --
(a) his or her duties as a director are to prevail if a conflict
25 arises between those duties and his or her other duties as
a public service officer; and
(b) he or she does not have any immunity of the State in
respect of the duties and liabilities imposed on directors
by this Act.
page 7
Electricity Corporations Bill 2005
Part 2 Electricity Corporations
Division 3 Staff
s. 13
13. Committees
(1) The board of a corporation may --
(a) appoint committees of such directors of the corporation
as it thinks fit; and
5 (b) discharge, alter or reconstitute any committee.
(2) A committee is to comply with any direction or requirement of
the board by which it was appointed.
(3) A committee may invite any person, including a member of
staff of the corporation concerned, to participate in a meeting of
10 the committee but such a person cannot vote on any resolution.
(4) Subject to subsection (2), a committee may determine its own
procedures.
Division 3 -- Staff
Subdivision 1 -- Chief executive officer
15 14. Appointment
(1) A corporation is to have a chief executive officer.
(2) The powers --
(a) to appoint and remove the chief executive officer of a
corporation; and
20 (b) to fix and alter his or her terms and conditions of
service,
are vested in the board of the corporation.
(3) Despite subsection (2), the Minister is to appoint the initial chief
executive officer of a corporation.
25 (4) It is a condition of service of the chief executive officer of the
Regional Power Corporation that, while he or she holds office,
his or her ordinary place of residence is to be in or near the town
where the head office of that corporation is located.
page 8
Electricity Corporations Bill 2005
Electricity Corporations Part 2
Staff Division 3
s. 15
(5) The board is to obtain the concurrence of the Minister before it
exercises any of the powers conferred by subsection (2).
15. Role of chief executive officer
Subject to the control of the board, the chief executive officer of
5 a corporation is responsible for, and has the powers needed to
administer, the day to day operations of the corporation.
16. Resignation
(1) The chief executive officer of a corporation may resign from
office by giving notice in writing to the board of the
10 corporation.
(2) If the chief executive officer's terms and conditions of service
deal with the matter of resignation, the right to resign under
subsection (1) can only be exercised in accordance with those
terms and conditions.
15 17. Acting appointments
The board of a corporation may appoint a person to act in place
of the chief executive officer of the corporation --
(a) during a vacancy in that office; or
(b) during any period when the chief executive officer is on
20 leave or otherwise unable to carry out his or her duties
or is absent from the State.
Subdivision 2 -- Other staff
18. Powers in relation to staff
(1) The power to engage and manage the staff of a corporation is
25 vested in its board.
(2) The power conferred by subsection (1) --
(a) includes powers to determine remuneration and other
terms and conditions of service and to remove, suspend
and discipline staff; and
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(b) does not preclude the delegation of any matter under
section 71.
(3) The remuneration of a member of staff and other terms and
conditions of employment are to be such that the overall
5 entitlements do not, on balance, disadvantage the person in
comparison to the entitlements he or she would have under --
(a) an applicable award, order or agreement under the
Industrial Relations Act 1979; or
(b) the Minimum Conditions of Employment Act 1993.
10 (4) Nothing in this Act, other than section 19(2), affects the
operation of the Industrial Relations Act 1979 Part VID.
19. Certain industrial matters excluded from employment
agreements
(1) There are excluded from the operation of the Industrial
15 Relations Act 1979 Part II Division 2B --
(a) any matters dealt with by an instrument issued under
section 21 except --
(i) rates of remuneration;
(ii) leave;
20 (iii) hours of duty; and
(iv) matters that are similar to matters prescribed for
the purposes of the Public Sector Management
Act 1994 section 99(1)(a)(iv);
and
25 (b) matters concerning the management of the staff that are
similar to matters prescribed for the purposes of the
Public Sector Management Act 1994 section 99(1)(c).
(2) A matter referred to in subsection (1) cannot be varied or
affected by an employer-employee agreement made under the
30 Industrial Relations Act 1979 Part VID.
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20. Designation of executive officers
For the purposes of section 29, the board of a corporation may
designate a member of the staff of the corporation as an
executive officer by resolution --
5 (a) passed by the board; and
(b) notified in writing to the employee,
and may in the same manner revoke such a designation.
Subdivision 3 -- Minimum standards for staff management
21. Standards to be set out in instrument
10 (1) The board of a corporation must, after consultation with the
Commissioner for Public Sector Standards, prepare and issue an
instrument setting out minimum standards of merit, equity and
probity applicable to the management of the staff of the
corporation.
15 (2) In subsection (1) --
"management" includes recruitment, selection, appointment,
transfer, secondment, performance management,
redeployment, discipline and termination of employment.
(3) In complying with subsection (1) a board is to have regard to
20 the principles set out in the Public Sector Management Act 1994
section 8.
(4) Section 14(5) is not affected by the requirements of
subsection (3).
(5) The Commissioner for Public Sector Standards may at any time
25 recommend to a board any amendment that he or she thinks
should be made to an instrument issued under this section.
(6) A board may --
(a) amend an instrument issued under this section; or
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(b) revoke it and substitute a new instrument,
but, except where subsection (5) applies, is to do so only after
consultation with the Commissioner for Public Sector
Standards.
5 22. Reports to Commissioner for Public Sector Standards
(1) The Commissioner for Public Sector Standards may in writing
require a board --
(a) to report to him or her on the observance of the
minimum standards in force under section 21; and
10 (b) to make the reports at such times, but not more often
than half-yearly, as the Commissioner may specify.
(2) A board must comply with a requirement made under
subsection (1).
(3) The Commissioner for Public Sector Standards may at any time
15 report to the Minister on the content or observance of the
minimum standards in force under section 21.
Subdivision 4 -- Joint policy on staff transfers
23. Corporations to have joint policy approved by Minister
(1) The corporations must have, and comply with, a joint policy on
20 staff transfers that has been approved or determined by the
Minister under this section.
(2) The purpose of the joint policy referred to in subsection (1) is to
ensure that members of staff of the corporations and of their
subsidiaries have the opportunity to transfer between the
25 corporations and their subsidiaries --
(a) for temporary or permanent employment;
(b) on secondment or temporary deployment; or
(c) for training,
without loss of entitlements.
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(3) Within 2 months after the commencement of this section, the
corporations must jointly prepare a draft policy statement for the
purposes of subsection (1) and submit it to the Minister.
(4) The Minister may --
5 (a) approve a draft policy statement submitted under
subsection (3); or
(b) request that it be amended and approve it in an amended
form.
(5) If a policy statement has not been approved by the Minister
10 within a period that he or she considers reasonable and notifies
to the corporations, the Minister may determine the contents of
the policy statement.
24. Amendment of policy statement
(1) With the approval of the Minister, the corporations may
15 jointly --
(a) amend a policy statement for the time being in force
under section 23; or
(b) revoke it and replace it with another policy statement.
(2) The Minister may, in writing, direct the corporations --
20 (a) to amend a policy statement for the time being in force
under section 23 in a specified way; or
(b) to revoke it and replace it with another policy statement
containing specified provisions,
and the corporations are to comply with any such direction.
25 25. Consultation with staff
A corporation must --
(a) in preparing the draft policy statement under
section 23(3); and
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(b) before agreeing to make any amendment or replacement
under section 24(1),
consult the members of its staff and the staff of its subsidiaries
by making the draft statement, amendment or replacement, as
5 the case may be, available for their comment.
Subdivision 5 -- General
26. Superannuation
(1) In this section --
"members of staff" includes --
10 (a) a chief executive officer;
(b) dependants of members of staff; and
(c) former members of staff and their dependants.
(2) A corporation may grant, or make provision for the grant of,
retirement benefits to members of staff of the corporation and,
15 for that purpose may --
(a) establish, manage and control; or
(b) enter into an arrangement with any body for the
establishment, management and control by such body
either alone or jointly with the corporation of,
20 any fund or scheme for the purpose of providing for such
retirement benefits.
(3) The corporation concerned may make contributions to any fund
or scheme referred to in subsection (2).
(4) Subsections (2) and (3) have effect subject to the State
25 Superannuation Act 2000 section 30.
(5) Nothing in this section affects the operation of the State
Superannuation Act 2000 in relation to a corporation or any
member of staff.
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Division 4 -- Duties of, and relating to, directors and staff
27. Duties of, and relating to, directors
Schedule 2 has effect in relation to --
(a) the duties of directors;
5 (b) the duties of a corporation in respect of directors and
related persons; and
(c) the other matters provided for in that Schedule.
28. Chief executive officer, duties imposed
(1) Schedule 2 clauses 2 to 11, 15 and 16 apply to the chief
10 executive officer of a corporation in his or her capacity as such
in addition, if he or she is a director of the corporation, to their
application to him or her in that capacity.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a former chief
executive officer in his or her capacity as such in addition, if he
15 or she was a director of the corporation, to their application to
him or her in the capacity of former director.
(3) This section and section 27 do not operate so as to make a chief
executive officer or a former chief executive officer liable to be
punished twice for the same act or omission.
20 29. Executive officers, duties imposed
(1) Schedule 2 clauses 2 to 5, 7 to 11, 15 and 16 apply to an
executive officer as if references to a director were replaced by
references to an executive officer.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a former executive
25 officer as if references to a former director were replaced by
references to a former executive officer.
30. Members of staff, duties imposed
(1) Schedule 2 clauses 4, 5 and 7 to 11 apply to any person engaged
under section 18, other than an executive officer, as if
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references to a director were replaced by references to a person
so engaged.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a person formerly
engaged under section 18, other than an executive officer, as if
5 references to a former director were replaced by references to a
person formerly so engaged.
31. Codes of conduct
(1) In this section and in sections 32 and 33 --
"members of staff" includes a chief executive officer.
10 (2) The board of a corporation must, after consultation with the
Commissioner for Public Sector Standards, prepare and issue a
code or codes of conduct setting out minimum standards of
conduct and integrity to be observed by members of staff of the
corporation.
15 (3) In complying with subsection (2) a board is to have regard to
the principles set out in the Public Sector Management Act 1994
section 9.
(4) A board may, after consultation with the Commissioner for
Public Sector Standards, amend any code of conduct in force
20 under subsection (2) or revoke it and substitute a new code of
conduct.
32. Reports to Commissioner for Public Sector Standards
(1) The Commissioner for Public Sector Standards may in writing
require the board of a corporation --
25 (a) to report to him or her on the observance of any code of
conduct in force under section 31 by members of staff of
the corporation; and
(b) to make the reports at such times, but not more often
than half-yearly, as the Commissioner may specify.
30 (2) A board must comply with a requirement made under
subsection (1).
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(3) The Commissioner for Public Sector Standards may at any time
report to the Minister on any matter that the Commissioner
thinks should be brought to the Minister's attention relating to
the observance by members of staff of a corporation of a code
5 of conduct in force under section 31.
33. Reports to Minister
(1) The board of a corporation, when it delivers to the Minister its
annual report under section 107, must also deliver to the
Minister a separate report on the observance of any code of
10 conduct in force under section 31 by members of staff of the
corporation.
(2) A board must give to the Commissioner for Public Sector
Standards a copy of each report under subsection (1).
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Part 3 -- Functions and powers of corporations
Division 1 -- Functions, powers and related provisions
Subdivision 1 -- Preliminary
34. Terms used in this Division
5 (1) In this Division --
"acquire", in relation to electricity or gas, includes acquire by
way of exchange;
"ancillary services" means services that are necessary or
expedient for the security or reliability of an electricity
10 system;
"energy efficient technologies" means technologies, including
but not limited to operating software, designed to improve
the efficiency of electricity generation plant and equipment;
"renewable sources" means sources of energy that are replaced
15 rapidly by natural processes, including sunlight, wind,
biomass, water in motion and geothermal activity;
"telecommunication services" means services for carrying
communications by one or more of the following means --
(a) guided electromagnetic energy;
20 (b) unguided electromagnetic energy;
(c) optical signals;
(d) other similar means.
(2) References in this Division to the performance of a
corporation's functions being limited to the South West
25 interconnected system are --
(a) in the case of a function relating to electricity, references
to performing the function for the purposes of that
system or customers served by that system;
(b) in the case of the functions of --
30 (i) supplying gas or steam; or
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(ii) providing telecommunication services,
references to performing those functions within the area
served by that system.
Subdivision 2 -- Electricity Generation Corporation
5 35. Principal functions
The functions of the Electricity Generation Corporation (in this
Subdivision called the "corporation") are, subject to this
Subdivision --
(a) to generate, purchase or otherwise acquire, and supply
10 electricity from sources of energy including renewable
sources;
(b) to acquire, transport and supply --
(i) gas; and
(ii) steam;
15 (c) to acquire, develop, operate and supply energy efficient
technologies;
(d) to provide ancillary services;
(e) by agreement with the Regional Power Corporation --
(i) to provide consultative and advisory services to
20 that corporation in relation to electricity
generation; and
(ii) to operate and maintain any electricity generation
plant or equipment on behalf of that corporation;
and
25 (f) to undertake, maintain and operate any works, system,
facilities, apparatus or equipment required for any
purpose mentioned in this section.
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36. Other functions
It is also a function of the corporation --
(a) in addition to its function under section 35(e)(i), to use
its expertise and resources to provide consultative,
5 advisory or other services for profit;
(b) to develop and turn to account any technology, software
or other intellectual property that relates to a function
under section 35;
(c) to manufacture and market any product that relates to a
10 function under section 35 or paragraph (b);
(d) to use or exploit for profit the fixed assets it has for the
purpose of performing a function under section 35 so
long as the proper performance of the function is not
affected;
15 (e) to do anything that the corporation determines to be
conducive or incidental to the performance of a function
under section 35 or this section; or
(f) to do anything that it is authorised to do by any other
written law.
20 37. Restriction on area in which corporation may operate
(1) Within the State the performance of the corporation's functions
under section 35 is limited to the South West interconnected
system.
(2) Subsection (1) does not apply to the performance of the
25 corporation's functions under section 35(a) so far as the
performance involves only --
(a) the generation and supply of electricity from renewable
sources; or
(b) the purchase or other acquisition and supply of
30 electricity so generated.
(3) Subsection (1) does not apply to the performance of the
corporation's functions under subparagraph (ii) of section 35(e),
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but the functions under that subparagraph do not authorise the
corporation to own or control any electricity generation plant or
equipment.
38. Restriction on sale of electricity to consumers
5 (1) Except as may be authorised under subsection (3), the
corporation, or a subsidiary, must not, until after the expiry of
the designated period, supply electricity to a person under
section 35(a) for the person's own consumption.
(2) For the purposes of subsection (1) --
10 "the designated period" is --
(a) the period of 7 years; or
(b) if an order is made under section 40, the period of
10 years,
after the commencement of this section.
15 (3) The Minister may, by order published in the Gazette --
(a) authorise the corporation in the performance of its
functions under section 35(a) to supply electricity to
specified customers or any specified class of customers
during the designated period; and
20 (b) amend or revoke an order made under paragraph (a).
39. Review of restriction
(1) The Minister is to review the operation of section 38(1) before
the expiry of 5 years from the commencement of this section.
(2) The purpose of the review is to determine the effect that the
25 operation of section 38(1) has had, and is likely to have, on the
encouragement of competition in the generation, retail and
wholesale electricity markets.
(3) Before the Minister carries out the review he or she must obtain,
and take into account, the views of the Economic Regulation
30 Authority on the matters mentioned in subsection (2).
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40. Extension of designated period
(1) The Minister may by order made --
(a) after completion of the review required by section 39;
and
5 (b) before the expiry of the period of 7 years after the
commencement of this section,
declare that the designated period is extended to 10 years after
that commencement.
(2) The Interpretation Act 1984 sections 41 and 42 apply to an
10 order under subsection (1) as if it were a regulation.
Subdivision 3 -- Electricity Networks Corporation
41. Principal functions
The functions of the Electricity Networks Corporation (in this
Subdivision called the "corporation") are --
15 (a) to manage, plan, develop, expand, enhance, improve and
reinforce electricity transmission and distribution
systems and provide and improve electricity
transmission and distribution services;
(b) to do anything that it is authorised or required to do by
20 the Electricity Industry Act 2004 Part 8 (which relates to
network access) and regulations and Code made under
that Part;
(c) to do anything that it is authorised or required to do by
the Electricity Industry Act 2004 Part 9 (which relates to
25 the wholesale electricity market) and regulations and
market rules made under that Part;
(d) to provide services that improve the efficiency of
electricity supply and the management of demand on
electricity transmission and distribution systems;
30 (e) to provide ancillary services;
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(f) by agreement with the Regional Power Corporation, to
operate and maintain electricity transmission and
distribution systems on behalf of that corporation;
(g) by agreement with the Electricity Generation
5 Corporation, the Electricity Retail Corporation and the
Regional Power Corporation, to provide procurement,
financial and commercial services to those corporations;
(h) to provide telecommunication services; and
(i) to undertake, maintain and operate any works, system,
10 facilities, apparatus or equipment required for any
purpose mentioned in this section.
42. Other functions
It is also a function of the corporation --
(a) in addition to its functions under section 41(f) and (g), to
15 use its expertise and resources, other than those relating
to the functions referred to in section 41(c), to provide
consultative, advisory or other services for profit;
(b) to develop and turn to account any technology, software
or other intellectual property that relates to a function
20 under section 41(a) or (d) to (i);
(c) to manufacture and market any product that relates to a
function --
(i) under section 41(a) or (d) to (i); or
(ii) under paragraph (b) of this section;
25 (d) to use or exploit for profit the fixed assets it has for the
purpose of performing a function under section 41(a)
or (d) to (i) so long as the proper performance of the
function is not affected;
(e) to do anything that the corporation determines to be
30 conducive or incidental to the performance of a function
under section 41 or this section; or
(f) to do anything that it is authorised to do by any other
written law.
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43. Restriction on area in which corporation may operate
(1) Within the State the performance of the corporation's functions
under section 41 is limited to the South West interconnected
system.
5 (2) Subsection (1) does not apply to the performance of the
corporation's functions under section 41(f) and (g), but the
functions under section 41(f) or (i) do not authorise the
corporation to own or control any electricity transmission or
distribution system.
10 Subdivision 4 -- Electricity Retail Corporation
44. Principal functions
The functions of the Electricity Retail Corporation (in this
Subdivision called the "corporation") are --
(a) to supply electricity to consumers and services which
15 improve the efficiency of electricity supply and the
management of demand;
(b) to purchase or otherwise acquire electricity for the
purposes of paragraph (a);
(c) to generate electricity, but only after the expiry of the
20 designated period under section 47;
(d) to provide ancillary services;
(e) by agreement with the Regional Power Corporation, to
provide retail support services to that corporation;
(f) to acquire gas and supply it to consumers;
25 (g) to provide telecommunication services; and
(h) to undertake, maintain and operate any works, system,
facilities, apparatus or equipment required for any
purpose mentioned in paragraph (a), (c), (e) or (g).
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45. Other functions
It is also a function of the corporation --
(a) in addition to its function under section 44(e), to use its
expertise and resources to provide consultative, advisory
5 or other services for profit;
(b) to develop and turn to account any technology, software
or other intellectual property that relates to a function
under section 44;
(c) to manufacture and market any product that relates to a
10 function under section 44 or paragraph (b);
(d) to use or exploit for profit the fixed assets it has for the
purpose of performing a function under section 44 so
long as the proper performance of the function is not
affected;
15 (e) to do anything that the corporation determines to be
conducive or incidental to the performance of a function
under section 44 or this section; or
(f) to do anything that it is authorised to do by any other
written law.
20 46. Restriction on area in which corporation may operate
(1) Within the State the performance of the corporation's functions
under section 44 is limited to the South West interconnected
system.
(2) Subsection (1) does not apply to the performance of the
25 corporation's functions under section 44(e).
47. Prohibition on generation of electricity for a designated
period
(1) The corporation, or a subsidiary of the corporation, must not
generate electricity until after the expiry of the designated
30 period.
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(2) For the purposes of subsection (1) --
"the designated period" is --
(a) the period of 7 years; or
(b) if an order is made under section 49, the period of
5 10 years,
after the commencement of this section.
48. Review of prohibition
(1) The Minister is to review the operation of section 47 before the
expiry of 5 years from the commencement of this section.
10 (2) The purpose of the review is to determine the effect that the
operation of section 47 has had, and is likely to have, on the
encouragement of competition in the generation, retail and
wholesale electricity markets.
(3) Before the Minister carries out the review he or she must obtain,
15 and take into account, the views of the Economic Regulation
Authority on the matters mentioned in subsection (2).
49. Extension of designated period
(1) The Minister may by order made --
(a) after completion of the review required by section 48;
20 and
(b) before the expiry of the period of 7 years after the
commencement of this section,
declare that the designated period is extended to 10 years after
that commencement.
25 (2) The Interpretation Act 1984 sections 41 and 42 apply to an
order under subsection (1) as if it were a regulation.
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Subdivision 5 -- Regional Power Corporation
50. Principal functions
The functions of the Regional Power Corporation (in this
Subdivision called the "corporation") are --
5 (a) to generate, purchase or otherwise acquire electricity
from sources of energy including renewable sources;
(b) to manage, plan, develop, expand, enhance, improve and
reinforce electricity transmission and distribution
systems and provide and improve electricity
10 transmission and distribution services;
(c) to do anything that it is authorised or required to do by
the Electricity Industry Act 2004 Part 8 (which relates to
network access) and regulations and Code made under
that Part;
15 (d) to supply electricity to consumers and services which
improve the efficiency of electricity supply and the
management of demand and which, so far as is
practicable, are comparable to services provided by the
Electricity Retail Corporation in the performance of its
20 functions under section 44(a);
(e) to acquire, transport and supply --
(i) gas; and
(ii) steam;
(f) to acquire, develop, operate and supply energy efficient
25 technologies;
(g) to provide ancillary services;
(h) by agreement with the Electricity Generation
Corporation, to operate and maintain any electricity
generation plant or equipment on behalf of that
30 corporation;
(i) to provide telecommunication services; and
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(j) to undertake, maintain and operate any works, system,
facilities, apparatus or equipment required for any
purpose mentioned in this section.
51. Other functions
5 It is also a function of the corporation --
(a) to use its expertise and resources to provide
consultative, advisory or other services for profit;
(b) to develop and turn to account any technology, software
or other intellectual property that relates to a function
10 under section 50 other than the function under section
50(c);
(c) to manufacture and market any product that relates to a
function under section 50 or paragraph (b);
(d) to use or exploit for profit the fixed assets it has for the
15 purpose of performing a function under section 50, other
than the function under section 50(c) so long as the
proper performance of the function is not affected;
(e) to do anything that the corporation determines to be
conducive or incidental to the performance of a function
20 under section 50 or this section; or
(f) to do anything that it is authorised to do by any other
written law.
52. Restriction on area in which corporation may operate
(1) Within the State the performance of the corporation's functions
25 under section 50(a) to (g) and (i) and (j) relating to electricity is
limited to electricity systems in those parts of the State (the
"area of operations") that are not served by the South West
interconnected system.
(2) Within the State the performance of the corporation's functions
30 of --
(a) supplying gas or steam; or
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(b) providing telecommunication services,
is limited to supply or provision within the area of operations.
Subdivision 6 -- Special function in respect of certain assets
and liabilities
5 53. Administration under delegated power
(1) In this section --
"unallocated asset or liability" means an asset, right or
liability that, under section 169 is to be dealt with by the
Minister.
10 (2) Regulations may be made --
(a) declaring --
(i) any specified unallocated asset or liability; or
(ii) any specified group of such assets or liabilities,
to be an asset or liability or group to which this section
15 applies (the "declared matters"); and
(b) designating a corporation to act in respect of the
declared matters.
(3) If regulations are in force designating a corporation to act in
respect of declared matters --
20 (a) the Minister may, in writing, delegate his or her powers
or duties under section 166 in respect of those matters to
that corporation; and
(b) it is a function of the corporation to exercise the powers
or duties so delegated.
25 (4) A corporation exercising or performing a power or duty that has
been delegated to it under this section is to be taken to do so in
accordance with the terms of the delegation, unless the contrary
is shown.
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(5) A corporation may exercise or perform a power or duty that has
been delegated to it under this section through an officer or
agent.
(6) The regulations may prescribe provisions of this Act that --
5 (a) do not apply; or
(b) apply with specified modifications, other than in relation
to quality and reliability of supply,
to the declared matters or the exercise of the powers or duties
under this section.
10 (7) Regulations referred to in subsection (6) cannot limit or
otherwise affect community service obligations, as defined in
section 99(1), to be performed by a corporation under this Act.
Subdivision 7 -- Use of distribution systems for the retail supply of
electricity
15 54. Electricity Networks Corporation and Regional Power
Corporation not to supply services for certain purposes
(1) In this section --
"customer", "distribution licence" and "integrated regional
licence" have the meanings given to those terms in the
20 Electricity Industry Act 2004 section 3;
"prescribed customer" means a customer of a class prescribed
by order under subsection (4);
"services" has the meaning given to that term in the Electricity
Industry Act 2004 section 103.
25 (2) A distribution licence does not authorise the Electricity
Networks Corporation, or a subsidiary of that corporation, to
supply services for the purpose of the supply of electricity to a
prescribed customer by a person other than the Electricity Retail
Corporation or a subsidiary of the Electricity Retail
30 Corporation.
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(3) A distribution licence or an integrated regional licence does not
authorise the Regional Power Corporation, or a subsidiary of
that corporation, to supply services for the purpose of the supply
of electricity to a prescribed customer by a person other than
5 that corporation or a subsidiary of that corporation.
(4) The Minister may, by order published in the Gazette --
(a) declare a class of customers to be prescribed customers
for the purposes of subsection (2) or (3); and
(b) amend or revoke an order made under paragraph (a).
10 (5) Without limiting subsection (4)(a), a class of customers may be
declared by reference to --
(a) the amount of electricity that has been consumed by a
customer within a specified period; or
(b) an estimate made by a specified person or a person of a
15 specified class of the amount of electricity that will be
consumed by a customer within a specified period.
(6) In subsection (5) --
"specified" means specified in the order.
(7) An order under subsection (4) cannot come into operation
20 before the Electricity Transmission and Distribution Systems
(Access) Act 1994 section 91 and Schedule 6 clause 2(1) have
ceased to have effect.
(8) Subsections (2) and (3) have effect despite the Electricity
Industry Act 2004 Part 8.
25 55. Review as to introduction of further retail competition
(1) The Minister is to cause a review to be undertaken of the
operation of section 54 and any orders under section 54(4) as
soon as practicable after the end of the period of 3 years
beginning on the coming into operation of this section.
30 (2) The purpose of the review is to consider whether or not further
competition (including full competition) in the retail supply of
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electricity should be introduced by amending or revoking any
order under section 54(4) that is then in operation.
(3) As soon as practicable after the review is completed, the
Minister is to cause a report based on the review to be laid
5 before each House of Parliament.
Subdivision 8 -- Provisions applying to functions of all corporations
56. Corporations may act at their discretion
The fact that a corporation has a function given to it by this Act
does not impose a duty on it to do any particular thing and,
10 subject to --
(a) this Act; and
(b) any direction given to the corporation under this Act,
it has a discretion as to how and when it performs the function.
57. Where corporation may operate
15 A corporation may perform any of its functions --
(a) outside the State; and
(b) except as provided in this Division, in any area of the
State.
58. Corporation to act in accordance with policy instruments
20 A corporation must perform its functions in accordance with its
strategic development plan and its statement of corporate intent
as existing from time to time.
59. Powers
(1) In subsection (3)(g) --
25 "business arrangement" means a company, a partnership, a
trust, a joint venture, or an arrangement for sharing profits;
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"participate" includes form, promote, establish, enter, manage,
dissolve, wind up, and do anything incidental to
participating in a business arrangement.
(2) A corporation has all the powers it needs to perform its
5 functions under this Act or any other written law.
(3) A corporation may for the purpose of performing any
function --
(a) acquire, hold, manage, improve, develop and dispose of
any real or personal property;
10 (b) enter into any contract or arrangement;
(c) apply for the grant or transfer of any mining tenement,
petroleum licence or other licence or authority to the
corporation;
(d) acquire, establish and operate --
15 (i) any undertaking (including any necessary
tenements and licences) for the production,
recovery, conversion, processing or transport of
any fuel or source of energy; and
(ii) any associated undertaking;
20 (e) produce and deal in --
(i) any by-product resulting from; or
(ii) any equipment, facilities or system associated
with,
the performance of any function of the corporation;
25 (f) appoint agents or engage persons under contracts for
services to provide professional, technical or other
assistance to the corporation;
(g) subject to sections 64 and 68, participate in any business
arrangement and acquire, hold and dispose of shares,
30 units or other interests in, or relating to, a business
arrangement;
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(h) carry out any investigation, survey, exploration or
boring;
(i) collaborate in, carry out, or procure the carrying out of,
research and publish information that results from the
5 research;
(j) for the purposes of section 36(b), 42(b), 45(b) or 51(b),
as the case may be, apply for, hold, exploit and dispose
of any patent, patent rights, copyright or similar rights;
and
10 (k) promote and market the corporation and its activities.
(4) A corporation may --
(a) make gifts for charitable purposes or for other purposes
of benefit to the community or a section of the
community;
15 (b) undertake community service obligations within the
meaning in section 99(1);
(c) make any ex gratia payment that the board considers to
be in the corporation's interest; and
(d) accept any gift, devise or bequest if it is absolute, or
20 subject to conditions that are within the functions of the
corporation.
(5) Subsection (3) or (4) does not limit subsection (2) or the other
powers of a corporation under this Act or any other written law.
(6) If the generality of a power conferred on a corporation by this
25 Act is restricted by a provision of the Energy Operators
(Powers) Act 1979 that restriction applies, despite this Act.
60. Certain works exempt from planning laws
(1) In this section --
"corporation" means each of --
30 (a) the Electricity Networks Corporation; and
(b) the Regional Power Corporation;
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"electricity distribution system" and "electricity
transmission system" have the meanings given to those
terms in the Electricity Transmission and Distribution
Systems (Access) Act 1994 section 89.
5 (2) This section applies to the carrying out by a corporation of
works for the extension, expansion or enhancement of an
electricity distribution system or an electricity transmission
system.
(3) Despite the Town Planning and Development Act 1928
10 sections 7B(7) and 10AB(1), a corporation is not required to
comply with the provisions of --
(a) an interim development order; or
(b) a town planning scheme,
in force under that Act in carrying out the works referred to in
15 subsection (2).
(4) However, a corporation --
(a) is to carry out the works, so far as is reasonably
practicable --
(i) in keeping with the design and intent of; and
20 (ii) so as not to destroy the amenity of,
any relevant scheme or order referred to in
subsection (3); and
(b) is to consult with the responsible authority at the time
when a proposal for any works referred to in
25 subsection (2) is being formulated to ensure that
paragraph (a) will be complied with.
(5) A corporation is to give the Minister and the Minister
responsible for the administration of the Town Planning and
Development Act 1928 written notice of a proposal to carry out
30 works referred to in subsection (2) if those works will not
comply with the provisions of an order or scheme referred to in
subsection (3).
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(6) A corporation is to include in its annual report under section 107
details of any works carried out by the corporation during the
relevant financial year that did not comply with the provisions
of an order or scheme referred to in subsection (3).
5 61. Corporation to act on commercial principles
(1) A corporation in performing its functions must --
(a) act in accordance with prudent commercial principles;
and
(b) endeavour to make a profit, consistently with
10 maximising its long term value.
(2) In respect of the function of the Electricity Networks
Corporation referred to in section 41(c) --
(a) subsection (1) does not apply; and
(b) the corporation is required to ensure, so far as is
15 practicable, that the reasonable cost of performing the
function does not exceed its revenue from doing so.
(3) If there is any conflict or inconsistency between the duty
imposed by subsection (1) and --
(a) a direction given under this Act; or
20 (b) any provision in the Electricity Transmission and
Distribution Systems (Access) Act 1994 Schedule 5 or 6,
the direction, or provision of that Schedule, prevails.
62. Segregation of functions of corporations
(1) Regulations may be made --
25 (a) prescribing segments into which the functions or
operations of a corporation are to be divided; and
(b) providing for, and in relation to --
(i) the segregation of any segment so prescribed in
respect of a corporation from the other functions
30 or operations of the corporation; or
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(ii) the segregation from a corporation of any
subsidiary of the corporation that has any
functions or operations of a specified kind.
(2) Regulations referred to in subsection (1) may make provision
5 for, or in relation to --
(a) the keeping of accounts and records;
(b) financial reporting;
(c) the apportionment of income, expenditure, assets and
liabilities;
10 (d) the protection of information;
(e) the conduct of officers of a corporation; and
(f) controls and procedures, and the conferral of functions
on a specified person, to ensure that any required
segregation is effective.
15 63. Interruption or restriction of supply
(1) A corporation may interrupt, suspend or restrict the generation,
transport or supply of electricity if in its opinion it is necessary
to do so because of an accident, emergency, potential danger or
other unavoidable cause.
20 (2) Subsection (1) does not apply if the Electricity Industry
Act 2004 section 31(1) applies to the activity that is interrupted,
suspended or restricted.
(3) A corporation is not liable for any loss or damage which arises
from any such interruption, suspension or restriction except to
25 the extent that an agreement to which the corporation is a party
provides otherwise.
(4) This section is in addition to the provisions of --
(a) the Energy Operators (Powers) Act 1979 sections 48, 57
and 58; and
30 (b) regulations made under the Electricity Industry Act 2004
section 124,
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and does not limit those provisions.
(5) This section has effect despite any provision of the Electricity
Transmission and Distribution Systems (Access) Act 1994
Schedule 5 or 6.
5 64. Acquisition of subsidiary
(1) A corporation must obtain the approval of the Minister before
it --
(a) forms or acquires a subsidiary; or
(b) enters into any transaction that will result in the
10 formation or acquisition of a subsidiary.
(2) The Minister is not to give approval under subsection (1) except
with the Treasurer's concurrence.
65. Control of subsidiary
(1) A corporation must ensure that the constitution of every
15 subsidiary of the corporation that under a written law or the
Corporations Act is required to have a constitution --
(a) contains provisions to the effect of those required by
Schedule 3;
(b) is consistent with this Act; and
20 (c) is not amended in a way that is inconsistent with this
Act.
(2) A corporation must, to the maximum extent practicable, ensure
that every subsidiary of the corporation complies with its
constitution and with this Act.
25 (3) A director, the chief executive officer or a member of staff of a
corporation may with the approval of the board of the
corporation become --
(a) a member of the committee of an incorporated
association; or
30 (b) a director of a company,
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that is or is to be a subsidiary of the corporation and may
represent the interests of the corporation on that committee or
the board of directors of that company.
(4) The provisions of this Act prevail to the extent of any
5 inconsistency with the constitution of any subsidiary of a
corporation.
66. Corporations Act, effect of section 65
(1) Neither --
(a) section 65(1) or (2); nor
10 (b) provisions referred to in section 65(1)(a) included in the
constitution of a subsidiary,
make a corporation or the Minister a director of a subsidiary for
the purposes of the Corporations Act.
(2) The following provisions are declared to be Corporations
15 legislation displacement provisions for the purposes of the
Corporations Act section 5G in relation to the Corporations
legislation as defined in the Corporations Act section 9 --
(a) section 65;
(b) subsection (1);
20 (c) Schedule 3.
67. Disposals that require a Ministerial order
(1) In this section --
"dispose of " means enter into any arrangement or series of
arrangements that results in a corporation ceasing to have at
25 least 75% of the beneficial interest in a significant asset;
"significant asset" means any property of a corporation
(including any contract, shares in a company or interest in a
joint venture) that has a value exceeding the greater of --
(a) the sum equal to 5% of the written down value of the
30 corporation's consolidated fixed assets and
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investments, as appearing in its last audited accounts;
or
(b) the sum of $100 million.
(2) A corporation must not dispose of a significant asset except
5 under and in accordance with an order (a "disposal order")
made by the Minister under this section.
(3) A corporation that intends to dispose of a significant asset must
consult with the Minister before undertaking the disposal.
(4) The Minister may make a disposal order --
10 (a) authorising a corporation to dispose of a significant asset
and to do so on such terms and conditions as may be
specified in the order; and
(b) if the Minister thinks fit, prescribing the process to be
followed by the corporation in undertaking the disposal.
15 (5) The Interpretation Act 1984 sections 41, 42, 43 and 44 apply to
a disposal order as if it were a regulation.
68. Other transactions that require Ministerial approval
(1) In this section and section 69 --
"transaction" --
20 (a) includes a contract or other arrangement or any
exercise of the power conferred by section 59(3)(g);
but
(b) does not include --
(i) a disposal to which section 67 applies; or
25 (ii) any transaction under section 127 or 129.
(2) Despite anything in this Part, a corporation must obtain the
approval of the Minister before a transaction to which this
section applies is entered into.
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(3) This section applies to a transaction if --
(a) it is to be entered into by a corporation or a subsidiary of
the corporation;
(b) it is not exempt under section 69; and
5 (c) the corporation's liability exceeds the prescribed
amount.
(4) For the purposes of subsection (3)(c) a corporation's liability
is --
(a) the amount or value of the consideration; or
10 (b) the amount to be paid or received by the corporation or a
subsidiary,
ascertained as at the time when the transaction is entered into.
(5) The prescribed amount in relation to a corporation is the greater
of --
15 (a) the sum equal to 1% of the written down value of the
consolidated fixed assets and investments of the
corporation, as appearing in its last audited accounts; or
(b) the sum of $20 million.
69. Exemptions from section 68
20 (1) The Minister may by order exempt a transaction or class of
transaction from the operation of section 68 either
unconditionally or on specified conditions.
(2) An order under subsection (1) may be revoked or amended by
the Minister.
25 (3) An order under subsection (1) or (2) is to show sufficient
particulars of the transactions or class of transaction to which it
relates to enable the transaction or class to be identified.
(4) The Minister must, within 14 days after an order under
subsection (1) or (2) is made, cause a copy of it to be laid before
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each House of Parliament or dealt with in accordance with
section 134.
70. Minister to be consulted on major initiatives
A corporation must consult the Minister before it enters upon a
5 course of action that in its opinion --
(a) amounts to a major initiative; or
(b) is likely to be of significant public interest,
whether or not the course of action involves a transaction to
which section 68 applies.
10 71. Delegation
(1) A corporation may delegate any power or duty of the
corporation under --
(a) another provision of this Act; or
(b) another written law.
15 (2) A delegation under subsection (1) may be made to --
(a) a director or directors;
(b) a chief executive officer;
(c) a member or members of staff;
(d) a committee established under section 13; or
20 (e) any other person.
(3) The delegation must be in writing executed by the corporation.
(4) A person to whom a power or duty is delegated under this
section cannot delegate that power or duty.
(5) A person exercising or performing a power or duty that has been
25 delegated to the person under this section is to be taken to do so
in accordance with the terms of the delegation, unless the
contrary is shown.
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Role of Economic Regulation Authority Division 2
s. 72
(6) Nothing in this section limits the ability of a corporation to
perform a function through an officer or agent.
Division 2 -- Role of Economic Regulation Authority
72. Advisory function
5 It is a function of the Economic Regulation Authority (the
"Authority") to give advice for the purposes of sections 39(3)
and 48(3) and to make any recommendation the Authority
thinks fit.
73. Public consultation
10 (1) Before the Authority gives advice on a matter under section 72
it must seek public comment on the matter in accordance with
subsection (2).
(2) The Authority must --
(a) cause a notice giving a general description of the matter
15 to be --
(i) published in an issue of a daily newspaper
circulating throughout the State; and
(ii) posted on an internet website maintained by the
Authority;
20 and
(b) include in the notice the following information --
(i) a statement that written submissions on the
matter may be made to the Authority by any
person within a specified period; and
25 (ii) the address to which the submissions may be
delivered or posted.
(3) The period specified under subsection (2)(b)(i) is not to be less
than 30 days after the notice under subsection (2)(a) has been
published.
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(4) The Authority must have regard to any submission made in
accordance with the notice.
74. Advice to be published
The Authority is to publish any advice given for the purposes of
5 section 72 by either or both of the following means --
(a) by publishing the advice in a newspaper circulating
throughout the State;
(b) by posting the advice on an internet website maintained
by the Authority.
10 Division 3 -- Arrangements authorised or approved
by Governor
75. Governor may make certain regulations
(1) Regulations may be made authorising or approving any
arrangement, act, matter or thing in relation to a corporation for
15 the purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Code.
(2) Regulations referred to in subsection (1) may authorise or
approve --
(a) any arrangement involving or relating to a corporation
20 or any subsidiary or the performance by a corporation or
any subsidiary of any of its functions;
(b) any act or thing done or proposed to be done in the State
by a corporation or any subsidiary in the performance of
its functions; or
25 (c) any other matter or thing necessary or convenient to
facilitate or give effect to the authorisation or approval.
(3) For the purposes of this section --
(a) "arrangement" includes any contract, arrangement or
understanding, or any market practice or market or
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customer restriction, division, allocation or segregation
of any nature, or a course of conduct or dealing; and
(b) a reference to any act or thing done or proposed to be
done includes a reference to an omission or proposed
5 omission to do that act or thing.
Division 4 -- Protection of persons dealing with a corporation
76. Person dealing with corporation may make assumptions
(1) A person having dealings with a corporation is entitled to make
the assumptions mentioned in section 78.
10 (2) In any proceedings in relation to the dealings, any assertion by
the corporation concerned that the matters that the person is
entitled to assume were not correct must be disregarded.
77. Third party may make assumptions
(1) A person (the "third party") having dealings with a person (the
15 "second party") who has acquired, or purports to have
acquired, title to property from a corporation (whether directly
or indirectly) is entitled to make the assumptions mentioned in
section 78.
(2) In any proceedings in relation to the dealings, any assertion by
20 the corporation concerned or the second party that the matters
that the third party is entitled to assume were not correct must
be disregarded.
78. Assumptions that may be made
The assumptions that a person is, because of section 76 or 77,
25 entitled to make are --
(a) that, at all relevant times, this Act has been complied
with;
(b) that a person who is held out by a corporation to be a
director, the chief executive officer, an executive officer,
30 a member of staff or an agent of a particular kind --
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(i) has been properly appointed; and
(ii) has authority to perform the functions
customarily performed by a director, the chief
executive officer, an executive officer, a member
5 of staff or an agent of that kind, as the case may
require;
(c) that a member of staff or agent of a corporation who has
authority to issue a document on behalf of a corporation
has authority to warrant that the document is genuine;
10 (d) that a member of staff or agent of a corporation who has
authority to issue a certified copy of a document on
behalf of the corporation has authority to warrant that
the copy is a true copy;
(e) that a document has been properly sealed by a
15 corporation if --
(i) it bears what appears to be an imprint of the
corporation's seal; and
(ii) the sealing of the document appears to comply
with section 135;
20 and
(f) that the directors, chief executive officer, members of
staff and agents of a corporation have properly
performed their duties to the corporation.
79. Exception to sections 76 and 77
25 (1) Despite sections 76 and 77, a person is not entitled to assume a
matter mentioned in section 78 if --
(a) the person has actual knowledge that the assumption
would be incorrect; or
(b) because of the person's connection or relationship with
30 the corporation concerned, the person ought to know
that the assumption would be incorrect.
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(2) If, because of subsection (1), a person is not entitled to make a
particular assumption in relation to dealings with a corporation,
section 76(2) does not apply to any assertion by the corporation
in relation to the assumption.
5 (3) If, because of subsection (1), the third party is not entitled to
make a particular assumption in relation to an acquisition or
purported acquisition from a corporation of title to property,
section 77(2) does not apply to any assertion by the corporation
or the second party in relation to the assumption.
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Part 4 -- Operation of corporations, imposition of
requirements
80. Meaning of terms used in this Part
In this Part --
5 "corporation" includes a subsidiary of a corporation;
"prescribed contract" means a contract referred to
section 82(1);
"specified" means specified in a prescribed contract.
81. Object of this Part
10 The object of this Part is to confer on the Minister power to
determine arrangements between the corporations in order to --
(a) encourage the development of competition in the
generation, wholesaling and retailing of electricity; and
(b) establish the terms and conditions of the initial
15 arrangements that are to have effect between them.
82. Minister may prescribe contracts
(1) The Minister may by order prescribe provisions that are to have
effect as a contract between --
(a) a specified corporation and another specified
20 corporation; or
(b) 2 or more specified corporations.
(2) The Minister is to cause an order under subsection (1) to be
served on each of the corporations concerned.
83. Matters that may be provided for
25 (1) A prescribed contract may provide for such matters as the
Minister considers necessary or expedient to achieve a purpose
mentioned in section 81(a) or (b).
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(2) Without limiting subsection (1), a prescribed contract may
include provision for --
(a) a specified amount of electricity, or an amount of
electricity determined in a specified manner, to be
5 supplied or made available by a corporation to another
corporation for a specified purpose; and
(b) the prices to be paid or price limits that are to apply.
(3) A prescribed contract may set out --
(a) the rights and obligations of the corporations concerned;
10 (b) arrangements and procedures that are to apply between
them;
(c) requirements that are to be complied with by each of the
corporations; and
(d) any incidental or supplementary provision that the
15 Minister considers it necessary or expedient to include
in the contract.
84. Amendment and cancellation
(1) The Minister may --
(a) vary or add to the provisions of a prescribed contract; or
20 (b) cancel the contract and replace it with another
prescribed contract.
(2) The Minister is to cancel, without replacing, a prescribed
contract made for the purpose mentioned in section 81(a) when
he or she considers that the State electricity market is operating
25 in an open and competitive manner.
(3) An amendment or cancellation is to be made by order served on
the corporations concerned.
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85. Enforcement
(1) A prescribed contract is taken to have been entered into between
the corporations concerned, and the rights and obligations under
the contract are enforceable accordingly.
5 (2) A prescribed contract has effect despite any other provision of
this Act.
86. Advice of Economic Regulation Authority to be obtained
(1) Before the Minister cancels a prescribed contract under
section 84(2) the Minister must obtain, and take into account,
10 the views of the Economic Regulation Authority on the effect
that the proposed cancellation is likely to have on the
encouragement of competition in the generation, wholesaling
and retailing of electricity.
(2) It is a function of the Economic Regulation Authority to give
15 advice for the purposes of subsection (1).
87. Trade practices exemption
For the purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Code, each of the
following --
20 (a) the making of an order under section 82(1) or 84;
(b) a prescribed contract;
(c) anything done under, or to give effect to, a prescribed
contract,
is specifically authorised to the extent that it would otherwise
25 contravene that Act or that Code.
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Provisions about accountability Part 5
Strategic development plans Division 1
s. 88
Part 5 -- Provisions about accountability
Division 1 -- Strategic development plans
88. Draft strategic development plan to be submitted to
Minister
5 (1) The board of a corporation must in each year prepare, and
submit to the Minister for his or her agreement, a draft strategic
development plan for the corporation and any subsidiary.
(2) The Minister may from time to time, with the concurrence of
the Treasurer, by notice in writing to a corporation --
10 (a) fix a day in each year by which a draft strategic
development plan is to be submitted under
subsection (1); or
(b) cancel a notice given under paragraph (a).
(3) Each draft strategic development plan is to be submitted not
15 later than --
(a) the day fixed under subsection (2); or
(b) if there is for the time being no day so fixed, 2 months
before the start of the next financial year.
89. Transitional provision
20 The first strategic development plan of a corporation is to be in
respect of the next full financial year after the commencement
of this section.
90. Matters to be included in strategic development plan
(1) The strategic development plan must set out economic and
25 financial objectives and operational targets and how those
objectives and targets will be achieved.
(2) The matters which are to be considered in the preparation of the
strategic development plan include competitive strategies
(where appropriate), pricing of products, productivity levels,
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Division 1 Strategic development plans
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financial requirements, capital expenditure and personnel
requirements.
(3) A strategic development plan is to cover a forecast period of
5 years or a lesser period agreed with the Minister.
5 (4) The regulations may make provision, not inconsistent with this
section, for and in relation to the form and content of strategic
development plans.
(5) The regulations may also make special provision --
(a) for and in relation to the content of strategic
10 development plans for the Electricity Networks
Corporation; and
(b) for the Minister administering the Electricity Industry
Act 2004 to be consulted on the content of those plans,
so far as they apply to the performance of that corporation's
15 functions under section 41(c).
(6) Regulations are not to be made for subsections (4) and (5)
except after consultation with the Treasurer.
91. Strategic development plan to be agreed if possible
The board of a corporation and the Minister must endeavour --
20 (a) to reach agreement on the draft strategic development
plan as soon as possible, and in any event not later than
the start of the next financial year; and
(b) to reach such agreement at the same time as they reach
agreement on the draft statement of corporate intent
25 under section 100.
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Electricity Corporations Bill 2005
Provisions about accountability Part 5
Strategic development plans Division 1
s. 92
92. Minister's powers in relation to draft strategic development
plan
(1) The Minister may return the draft strategic development plan to
a board and request it to --
5 (a) consider or further consider any matter and deal with the
matter in the draft plan; and
(b) revise the draft plan in the light of its consideration or
further consideration.
(2) The board must comply with the request as soon as is
10 practicable.
(3) If a board and the Minister have not reached agreement on a
draft strategic development plan by one month before the start
of the next financial year, the Minister may, by written notice,
direct the board --
15 (a) to take specified steps in relation to the draft plan; or
(b) to make specified modifications to the draft plan.
(4) The board must comply with a direction under subsection (3) as
soon as is practicable.
(5) The Minister must, within 14 days after a direction is given,
20 cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 134.
93. Strategic development plan pending agreement
(1) In subsection (3) --
"latest draft plan" means the draft strategic development plan
25 submitted, or last submitted, by the board concerned to the
Minister before the start of the financial year with any
modifications made by the board, whether before or after
that time, at the direction of the Minister.
(2) This section applies if the board of a corporation and the
30 Minister have not reached agreement on a draft strategic
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Electricity Corporations Bill 2005
Part 5 Provisions about accountability
Division 1 Strategic development plans
s. 94
development plan for the corporation and any subsidiary before
the start of a financial year.
(3) The latest draft plan is to be the strategic development plan for
the corporation and any subsidiary until a draft strategic
5 development plan is agreed to under section 94.
94. Minister's agreement to draft strategic development plan
When the board of a corporation and the Minister have reached
agreement on a draft strategic development plan for the
corporation and any subsidiary, it becomes the strategic
10 development plan for the corporation and any subsidiary for the
relevant financial year or the remainder of the year, as the case
may be.
95. Modifications of strategic development plan
(1) A strategic development plan may be modified by a board with
15 the agreement of the Minister.
(2) The Minister may, by written notice, direct a board to modify
the strategic development plan.
(3) Before giving a direction to a board under subsection (2) the
Minister must consult with the board and take its views into
20 account.
(4) The Minister must, within 14 days after a direction is given,
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 134.
96. Concurrence of Treasurer
25 The Minister is not to --
(a) agree to a draft strategic development plan under
section 94; or
(b) agree to or direct any modification of a strategic
development plan under section 95,
30 except with the concurrence of the Treasurer.
page 54
Electricity Corporations Bill 2005
Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 97
Division 2 -- Statement of corporate intent
97. Draft statement of corporate intent to be submitted to
Minister
(1) The board of a corporation must in each year prepare, and
5 submit to the Minister for his or her agreement, a draft
statement of corporate intent for the corporation and any
subsidiary.
(2) The Minister may from time to time, with the concurrence of
the Treasurer, by notice in writing to a corporation --
10 (a) fix a day in each year by which a draft statement of
corporate intent is to be submitted under subsection (1);
or
(b) cancel a notice given under paragraph (a).
(3) Each draft statement of corporate intent is to be submitted not
15 later than --
(a) the day fixed under subsection (2); or
(b) if there is for the time being no day so fixed, 2 months
before the start of the next financial year.
98. Transitional provision
20 The first statement of corporate intent of a corporation is to be
in respect of the next full financial year after the
commencement of this section.
99. Matters to be included in statement of corporate intent
(1) In subsection (3) --
25 "community service obligations" means obligations to
perform functions or to meet performance targets that it is
not in the commercial interests of the corporation
concerned to perform or to meet.
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Part 5 Provisions about accountability
Division 2 Statement of corporate intent
s. 99
(2) The statement of corporate intent of a corporation must be
consistent with the strategic development plan under Division 1
for the corporation and any subsidiary.
(3) The statement of corporate intent for a corporation and any
5 subsidiary must specify --
(a) the performance targets and other measures by which
performances may be judged in relation to objectives for
the relevant financial year;
(b) an outline of objectives;
10 (c) an outline of the nature and scope of the functions
proposed to be performed during the relevant financial
year;
(d) an outline of main undertakings during the relevant
financial year;
15 (e) the dividend policy for the relevant financial year;
(f) accounting policies that apply to the preparation of
accounts;
(g) the type of information to be given to the Minister,
including information to be given in quarterly and
20 annual reports;
(h) the nature and extent of community service obligations
that are to be performed;
(i) the costings of, funding for, or other arrangements to
make adjustments relating to, community service
25 obligations;
(j) the ways in which, and the extent to which,
compensation will be made for performing community
service obligations; and
(k) such other matters as may be agreed on by the Minister
30 and the board.
(4) The Minister may exempt a corporation from including any
matter, or any aspect of a matter, mentioned in subsection (3) in
its statement of corporate intent.
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Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 100
(5) The regulations may make provision, not inconsistent with this
section, for and in relation to the form and content of statements
of corporate intent.
(6) The regulations may also make special provision --
5 (a) for and in relation to the content of statements of
corporate intent for the Electricity Networks
Corporation; and
(b) for the Minister administering the Electricity Industry
Act 2004 to be consulted on the content of those
10 statements,
so far as they apply to the performance of the corporation's
functions under section 41(c).
(7) Regulations are not to be made for subsections (5) and (6)
except after consultation with the Treasurer.
15 100. Statement of corporate intent to be agreed if possible
The board of a corporation and the Minister must endeavour --
(a) to reach agreement on the draft statement as soon as
possible and, in any event not later than the start of the
next financial year; and
20 (b) to reach such agreement in accordance with
section 91(b).
101. Minister's powers in relation to draft statement of corporate
intent
(1) The Minister may return the draft statement of corporate intent
25 to a board and request it to --
(a) consider or further consider any matter and deal with the
matter in the draft statement; and
(b) revise the draft statement in the light of its consideration
or further consideration.
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Part 5 Provisions about accountability
Division 2 Statement of corporate intent
s. 102
(2) The board must comply with the request as soon as is
practicable.
(3) If a board and the Minister have not reached agreement on a
draft statement of corporate intent by one month before the start
5 of the financial year, the Minister may, by written notice, direct
the board --
(a) to take specified steps in relation to the draft statement;
or
(b) to make specified modifications to the draft statement.
10 (4) The board must comply with a direction under subsection (3) as
soon as is practicable.
(5) The Minister must, within 14 days after a direction is given,
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 134.
15 102. Statement of corporate intent pending agreement
(1) In subsection (3) --
"latest draft statement" means the draft statement of corporate
intent submitted, or last submitted, by the board concerned
to the Minister before the start of the financial year with
20 any modifications made by the board, whether before or
after that time, at the direction of the Minister.
(2) This section applies if the board of a corporation and the
Minister have not reached agreement on a draft statement of
corporate intent for the corporation and any subsidiary before
25 the start of a financial year.
(3) The latest draft statement is to be the statement of corporate
intent for the corporation and any subsidiary until a draft
statement of corporate intent is agreed to under section 103.
103. Minister's agreement to draft statement of corporate intent
30 (1) When the board of a corporation and the Minister have reached
agreement on a draft statement of corporate intent for the
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Electricity Corporations Bill 2005
Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 104
corporation and any subsidiary, it becomes the statement of
corporate intent for the relevant financial year or the remainder
of the year as the case may be.
(2) The Minister must, within 14 days after agreeing to a draft
5 statement of corporate intent under subsection (1), cause a copy
of it to be laid before each House of Parliament or dealt with in
accordance with section 134.
(3) A board may request the Minister to delete from the copy of a
statement of corporate intent that is to be laid before Parliament
10 a matter that is of a commercially sensitive nature, and the
Minister may, despite subsection (2), comply with the request.
(4) Any copy of a statement of corporate intent to which
subsection (3) applies must --
(a) contain a statement detailing the reasons for the deletion
15 at the place in the document where the information
deleted would otherwise appear; and
(b) be accompanied by an opinion from the Auditor General
stating whether or not the information deleted is
commercially sensitive.
20 (5) Nothing in subsection (3) affects, or is intended to affect, the
operation of the Parliamentary Privileges Act 1891 or the
Parliamentary Papers Act 1891.
104. Modifications of statement of corporate intent
(1) A statement of corporate intent may be modified by a board
25 with the agreement of the Minister.
(2) The Minister may, by written notice, direct a board to modify
the statement of corporate intent, and the board must comply
with any such direction.
(3) Before giving a direction to a board under subsection (2), the
30 Minister must consult with the board and take its views into
account.
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Electricity Corporations Bill 2005
Part 5 Provisions about accountability
Division 3 Quarterly and annual reports
s. 105
(4) The Minister must, within 14 days after a direction is given,
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 134.
105. Concurrence of Treasurer
5 The Minister is not to --
(a) agree to a draft statement of corporate intent under
section 103; or
(b) agree to or direct any modification of a statement of
corporate intent under section 104,
10 except with the concurrence of the Treasurer.
Division 3 -- Quarterly and annual reports
106. Quarterly reports
(1) A corporation must, for each of the first 3 quarters of a financial
year, give to the Minister a separate report on the operations of
15 the corporation and of each subsidiary.
(2) A quarterly report is to be prepared by a corporation --
(a) on a consolidated basis; and
(b) for any segment of the corporation prescribed by
regulations made for the purposes of section 62.
20 (3) A quarterly report must be given to the Minister --
(a) within one month after the end of the quarter; or
(b) if another period after the end of the quarter is agreed
between the Minister and the board concerned, within
the agreed period.
25 (4) A corporation must give a copy of each quarterly report to the
Treasurer.
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Electricity Corporations Bill 2005
Provisions about accountability Part 5
Quarterly and annual reports Division 3
s. 107
(5) A quarterly report must --
(a) include the information required to be given in the
report by a relevant statement of corporate intent under
Division 2; and
5 (b) comply with regulations made for the purposes of
section 62.
(6) Subject to section 109, the Minister must, after consultation
with the board concerned, make a quarterly report available to
the public.
10 107. Annual reports
(1) A corporation must prepare and deliver to the Minister in each
year a separate annual report on the operations of each of --
(a) the corporation, which is to be done --
(i) on a consolidated basis and in accordance with
15 Schedule 4 clauses 32 and 33; and
(ii) for any segment of the corporation prescribed by
regulations made for the purposes of section 62;
and
(b) any subsidiary, which is to be done in accordance with
20 Schedule 4 clauses 32 and 33.
(2) All of the reports under subsection (1) are to be sent to the
Minister at the same time.
(3) The Minister must, within 21 days after the day on which an
annual report of a corporation is delivered to the Minister, cause
25 a copy of the report to be laid before each House of Parliament
or dealt with in accordance with section 134.
(4) An annual report on the operations of a subsidiary is not
required to be laid before Parliament or dealt with in accordance
with section 134.
page 61
Electricity Corporations Bill 2005
Part 5 Provisions about accountability
Division 3 Quarterly and annual reports
s. 108
108. Contents of annual reports
(1) The annual report in respect of a corporation or a subsidiary
must --
(a) contain such information as is required to be included in
5 the report by the Minister to enable an informed
assessment to be made of the operations of the
corporation or the subsidiary;
(b) include a comparison of the performance of the
corporation or the subsidiary with any relevant
10 statement of corporate intent;
(c) comply with regulations made for the purposes of
section 62;
(d) include particulars of any directions given by the
Minister under section 92(3), 95(2), 101(3), 104(2),
15 111(1), 119(4) or 126(3) --
(i) that apply to the corporation or the subsidiary;
and
(ii) were given during the relevant financial year, or
at any other time to the extent that they
20 continued to be material during that year;
and
(e) include particulars of the impact on the financial
position, profits and losses and prospects of the
corporation or the subsidiary of any modifications to --
25 (i) the statement of corporate intent; and
(ii) any directions given by the Minister under
section 111(1),
that were given during the relevant financial year.
(2) The annual report in respect of a corporation must also include a
30 summary of the report referred to in section 33.
(3) The requirements of this section are in addition to Schedule 4
clauses 32 and 33.
page 62
Electricity Corporations Bill 2005
Provisions about accountability Part 5
Ministerial directions Division 4
s. 109
109. Deletion of commercially sensitive matters from reports
(1) The board of a corporation may request the Minister to delete a
matter that is of a commercially sensitive nature from the copies
of a quarterly or annual report (and accompanying documents)
5 relating to the corporation that are to be made public.
(2) The Minister may, despite section 108, comply with a request
under subsection (1).
(3) If the Minister complies with a request under subsection (1) the
copies of the report are to include a statement that a matter has
10 been deleted from it under this section.
(4) Nothing in this section affects, or is intended to affect, the
operation of the Parliamentary Privileges Act 1891 or the
Parliamentary Papers Act 1891.
Division 4 -- Ministerial directions
15 110. Directions to corporation
Except as provided by this Act or any other written law, a
corporation is not required to comply with any direction or
administrative request given or made by or on behalf of the
Government.
20 111. Directions generally
(1) The Minister may give directions in writing to a corporation
with respect to the performance of its functions, either generally
or in relation to a particular matter, and, subject to section 112,
the corporation is to give effect to any such direction.
25 (2) Without limiting subsection (1) and despite anything in Part 3,
the Minister may under that subsection direct a corporation --
(a) not to perform a function specified in the direction;
(b) not to perform a function specified in the direction to an
extent, or except to an extent, specified in the direction;
30 or
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Electricity Corporations Bill 2005
Part 5 Provisions about accountability
Division 4 Ministerial directions
s. 112
(c) not to perform a function specified in the direction in or
in relation to an area, or except in or in relation to an
area, specified in the direction.
(3) Subsection (2) does not authorise a direction of a kind
5 mentioned in section 114.
(4) Despite subsection (1), the Minister cannot give a direction to
the Electricity Networks Corporation with respect to the
exercise or performance of any power or duty of that
corporation under the Electricity Industry Act 2004 Part 9 or
10 regulations or market rules made under that Part.
(5) The Minister must cause the text of any direction under
subsection (1) to be laid before each House of Parliament or
dealt with in accordance with section 134 --
(a) within 14 days after the direction is given; or
15 (b) if the direction is the subject of a notice under
section 112(1), within 14 days after it is confirmed
under section 112(2).
112. Directions contrary to commercial interest
(1) Where a direction under section 111 is given to a corporation
20 and the board of the corporation determines that --
(a) it would be inconsistent with section 61(1) for the
corporation to comply with the direction; or
(b) there is some other reason why it should not so comply,
the board is to notify the Minister in writing within 7 days of
25 receipt of the direction of its determination and the reason for it.
(2) Where a board gives such a notice to the Minister --
(a) the Minister is to consult with the Treasurer and having
regard to those consultations the Minister is to cancel or
confirm the direction; and
30 (b) the corporation is not required to give effect to the
direction unless it is so confirmed.
page 64
Electricity Corporations Bill 2005
Provisions about accountability Part 5
Ministerial directions Division 4
s. 113
113. When directions take effect
(1) A direction under section 111 becomes effective --
(a) on the expiry of 7 days after its receipt by the board
concerned or of such longer period as the Minister may,
5 at the request of the board, determine; or
(b) if it is the subject of a notice under section 112(1), on its
being confirmed under section 112(2).
(2) If the board asks the Minister to extend the 7 day period under
subsection (1), the Minister must consider the request and notify
10 the board of his or her decision before the 7 day period has
expired.
114. Directions relating to the supply of gas
(1) In this section --
"corporation" means the Electricity Generation Corporation or
15 the Electricity Retail Corporation;
"specified" means specified in the instrument referred to in
subsection (2).
(2) The Minister may, despite section 35(b) or 44(f), by instrument
served on a corporation direct it not to sell or supply gas --
20 (a) within, or for delivery or consumption within, a
specified area or specified areas of the State;
(b) in specified quantities; or
(c) to specified customers or a specified class of customers.
(3) The corporation must comply with a direction in an instrument
25 under subsection (2).
(4) The Minister may --
(a) amend or revoke an instrument under subsection (2); or
(b) revoke the instrument and replace it with another
instrument.
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Electricity Corporations Bill 2005
Part 5 Provisions about accountability
Division 5 Consultation and provision of information
s. 115
(5) An amendment or revocation is to be made by instrument
served on the corporation.
(6) The Minister must, within 14 days after an instrument is served
on the corporation under this section, cause a copy of it to be
5 laid before each House of Parliament or dealt with in
accordance with section 134.
Division 5 -- Consultation and provision of information
115. Consultation
The board of a corporation and the Minister, at the request of
10 either, are to consult together, either personally or through
appropriate representatives, in relation to any aspect of the
operation of the corporation.
116. Minister to have access to information
(1) In this section --
15 "document" includes any tape, disk or other device or medium
on which information is recorded or stored mechanically,
photographically, electronically or otherwise;
"information" means information specified, or of a description
specified, by the Minister that relates to the functions of the
20 corporation.
(2) The Minister is entitled --
(a) to have information in the possession of a corporation
and any subsidiary; and
(b) where the information is in or on a document, to have,
25 and make and retain copies of, that document.
(3) For the purposes of subsection (2) the Minister may --
(a) request the chief executive officer or the board of a
corporation to furnish information to the Minister;
(b) request the chief executive officer or the board of a
30 corporation to give the Minister access to information;
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Provisions about accountability Part 5
Consultation and provision of information Division 5
s. 117
(c) for the purposes of paragraph (b) make use of the staff
of a corporation and any subsidiary to obtain the
information and furnish it to the Minister.
(4) A request under subsection (3)(a) may specify a time before
5 which the information is to be furnished.
(5) The chief executive officer or the board of a corporation is to --
(a) comply with a request under subsection (3); and
(b) make staff and facilities available to the Minister for the
purposes of subsection (3)(c).
10 (6) Where the chief executive officer or the board of a corporation
furnishes or gives access to information to the Minister the
Minister is to be advised whether or not in the opinion of the
chief executive officer or the board the public disclosure of the
information would adversely affect the commercial interests of
15 the corporation or any subsidiary.
117. Provision of information in compiled form
(1) Subsection (2) applies if the Minister wishes to obtain from a
corporation information that --
(a) is not itself in the possession of the corporation or a
20 subsidiary; but
(b) is capable of being assembled or compiled from
information in the possession of the corporation or a
subsidiary.
(2) The Minister may request the chief executive officer or the
25 board of the corporation to furnish to the Minister a document
containing information that --
(a) is of a specified description;
(b) is presented in a specified way;
(c) relates to a specified period; or
30 (d) has some other specified characteristic,
or that comes within 2 or more of paragraphs (a) to (d).
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Division 5 Consultation and provision of information
s. 118
(3) A request under subsection (2) may specify a time before which
the document is to be furnished.
(4) The chief executive officer or the board of a corporation is to
comply with a request under subsection (2) and is to take, or
5 cause to be taken, whatever steps are necessary in order to do
so.
(5) Section 116(2) applies to a document prepared or compiled for
the purposes of this section in the same way as it applies to
other information in the possession of a corporation or a
10 subsidiary.
(6) Section 116(6) applies where a document is furnished under this
section in the same way as it applies where information is
furnished under that section.
118. Minister to be kept informed
15 A corporation must --
(a) keep the Minister reasonably informed of the operations,
financial performance and financial position of the
corporation and its subsidiaries, including the assets and
liabilities, profits and losses and prospects of the
20 corporation and its subsidiaries;
(b) give the Minister reports and information that he or she
requires for the making of informed assessments of
matters mentioned in paragraph (a); and
(c) if matters arise that in the opinion of the board of the
25 corporation may prevent, or significantly affect,
achievement of the corporation's --
(i) objectives outlined in its statement of corporate
intent; or
(ii) targets under its strategic development plan,
30 promptly inform the Minister of the matters and its
opinion in relation to them.
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Electricity Corporations Bill 2005
Provisions about accountability Part 5
Consultation and provision of information Division 5
s. 119
119. Notice of financial difficulty
(1) The board of a corporation must notify the Minister if the board
forms the opinion that the corporation or a subsidiary is unable
to, or will be unlikely to be able to, satisfy any financial
5 obligation, of the corporation or the subsidiary from the
financial resources available or likely to be available to the
corporation or the subsidiary at the time the financial obligation
is due.
(2) The notice must --
10 (a) be in writing;
(b) provide the reasons for the board's opinion; and
(c) provide such other information as the board considers
relevant.
(3) Within 7 days of receipt of the notice, the Minister must --
15 (a) confer with the Treasurer and the board for the purpose
of determining what action is required to ensure that the
corporation or subsidiary is able to satisfy the relevant
financial obligation when it is due; and
(b) initiate such action as is required to ensure that the
20 corporation or subsidiary is able to satisfy the relevant
financial obligation when it is due.
(4) For the purposes of subsection (3) the Minister may give
directions to a corporation including a direction requiring the
corporation or any subsidiary to cease or limit the performance
25 of any function.
(5) The board of a corporation must give effect to any such
direction and must ensure that it is complied with in relation to
any relevant subsidiary.
(6) The Minister must, within 14 days after a direction is given
30 under subsection (4), cause a copy of it to be laid before each
House of Parliament or dealt with in accordance with
section 134.
page 69
Electricity Corporations Bill 2005
Part 5 Provisions about accountability
Division 6 Protection from liability
s. 120
Division 6 -- Protection from liability
120. No liability for certain acts or omissions
(1) A corporation, a subsidiary of a corporation or a person
performing functions under this Act is not liable --
5 (a) in respect of any claim arising as a consequence of the
disclosure of information or documents under --
(i) section 106, 107, 115, 116, 117, 118 or 119; or
(ii) the Electricity Transmission and Distribution
Systems (Access) Act 1994 Schedule 5 clause 4
10 or 6 or Schedule 6 clause 4 or 6;
or
(b) for the fact of having done or omitted anything that is
required to be done or omitted by a direction given
under
15 section 92(3), 95(2), 101(3), 104(2), 111(1), 119(4)
or 126(3).
(2) Subsection (1) does not extend to the manner in which any thing
is done or omitted if it is done or omitted contrary to Schedule 2
clause 2 or 3.
page 70
Electricity Corporations Bill 2005
Financial provisions Part 6
General Division 1
s. 121
Part 6 -- Financial provisions
Division 1 -- General
121. Bank account
(1) A corporation may have an account or accounts at any bank or
5 banks, and money received by and expenditure of the
corporation is to be paid to or from such an account.
(2) In subsection (1) --
"bank" has the meaning given to that term in the Financial
Administration and Audit Act 1985 section 3(1).
10 122. Investment
Funds of a corporation that are not being used for the
performance of the corporation's functions may be invested in
such investments as the board of the corporation determines.
123. Exemption from rates
15 Land is not rateable land for the purposes of the Local
Government Act 1995 if it is --
(a) vested in, or under the management and control of, a
corporation; and
(b) used or reserved exclusively for the purpose of
20 providing works, undertakings or facilities necessary to
the performance of the functions of the corporation.
Division 2 -- Payments to State
124. Payment of amount in lieu of rates
A corporation must pay to the Treasurer in respect of a financial
25 year an amount equal to the sum of all local government rates
and charges that, but for --
(a) section 123; and
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Part 6 Financial provisions
Division 2 Payments to State
s. 125
(b) the Local Government Act 1995 section 6.26(2)(a)(i),
the corporation would have been liable to pay in respect of that
financial year.
125. Determination of amounts under section 124
5 Amounts payable under section 124 --
(a) are to be determined in accordance with such principles;
and
(b) are to be paid at such time or times,
as the Treasurer may direct.
10 126. Dividend
(1) A dividend under this section is to be --
(a) calculated with respect to the profits of a corporation
after first taking into account any amounts payable to
the Treasurer by the corporation under --
15 (i) section 124; and
(ii) the State Enterprises (Commonwealth Tax
Equivalents) Act 1996;
and
(b) paid to the Treasurer, in accordance with subsection (5).
20 (2) The board of a corporation, as soon as practicable after the end
of each financial year, is to make a recommendation to the
Minister as to the amount of the dividend (if any) that the board
recommends as appropriate to be paid by the corporation in
respect of that financial year.
25 (3) The Minister, with the concurrence of the Treasurer --
(a) may accept a recommendation under subsection (2); or
(b) after consultation with the board, is to direct that some
other amount is to be paid.
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Financial provisions Part 6
Borrowing Division 3
s. 127
(4) The Minister must, within 14 days after a direction is given
under subsection (3), cause a copy of it to be laid before each
House of Parliament or dealt with in accordance with
section 134.
5 (5) A corporation is to pay any dividend --
(a) as soon as is practicable after the amount is fixed under
subsection (3); and
(b) in any case not later than --
(i) 6 months after the end of the financial year to
10 which the dividend relates; or
(ii) such other time as may be agreed between the
Treasurer and the board.
Division 3 -- Borrowing
127. Borrowing
15 (1) In subsection (2)(c) --
"debt paper" means inscribed stock, bonds, debentures with
coupons annexed, bills of exchange, promissory notes or
bearer securities, or other similar instruments evidencing
indebtedness.
20 (2) A corporation may, subject to section 128 --
(a) borrow or re-borrow moneys;
(b) obtain credit;
(c) issue, acquire, hold or dispose of debt paper;
(d) create and issue capital instruments; or
25 (e) otherwise arrange for financial accommodation to be
extended to the corporation.
(3) Capital instruments created and issued by a corporation under
subsection (2)(d) --
(a) may be described in any way determined by the
30 corporation; and
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Part 6 Financial provisions
Division 3 Borrowing
s. 128
(b) are to be created and issued on such terms as the
corporation determines and the Treasurer approves.
(4) A corporation is to keep such registers for the purposes of this
section as may be prescribed.
5 128. Borrowing limits
(1) The Treasurer may, in accordance with subsections (2), (3)
and (4), by notice to a corporation, impose monetary limits on
the exercise by the corporation of the powers conferred by
section 127.
10 (2) The monetary limit in respect of a corporation is to be
determined for the exercise of those powers in the financial year
following the commencement of this section.
(3) That limit in respect of a corporation may be varied for any
subsequent financial year and any limit for the time being in
15 force may also be varied for a subsequent financial year.
(4) A limit for the time being in force in respect of a corporation
continues to apply until it is so varied.
(5) A corporation must comply with any limit for the time being in
force in respect of it.
20 (6) A liability of a corporation is not unenforceable or in any way
affected by a failure of the corporation to comply with this
section.
(7) No person dealing with a corporation is bound or concerned to
enquire whether the corporation has complied or is complying
25 with this section.
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Electricity Corporations Bill 2005
Financial provisions Part 6
Borrowing Division 3
s. 129
129. Hedging transactions
(1) A corporation may in connection with the exercise of any power
conferred by section 127 --
(a) enter into an agreement or arrangement to effect any of
5 the following transactions --
(i) a foreign exchange transaction;
(ii) a forward foreign exchange transaction;
(iii) a currency swap;
(iv) a forward currency swap;
10 (v) a foreign currency cap, a foreign currency collar
or a foreign currency floor;
(vi) a forward interest rate agreement;
(vii) an interest rate swap;
(viii) a forward interest rate swap;
15 (ix) an interest rate cap, an interest rate collar or an
interest rate floor;
(x) an option for interest rate or currency
management purposes;
(xi) a futures contract or a futures option;
20 (xii) a transaction of such other class as is approved in
writing by the Treasurer as a class of transactions
to which this paragraph applies;
or
(b) enter into an agreement or arrangement to effect any
25 transaction which is a combination of --
(i) 2 or more transactions permitted under
paragraph (a); or
(ii) one or more transactions permitted under
paragraph (a) and one or more transactions
30 permitted under section 127.
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Electricity Corporations Bill 2005
Part 6 Financial provisions
Division 4 Guarantees
s. 130
(2) In subsection (1)(a) --
"interest rate" includes coupon rate, discount rate and yield.
Division 4 -- Guarantees
130. Guarantees
5 (1) The Treasurer may with the concurrence of the Minister, in the
name and on behalf of the State, guarantee the performance by a
corporation, in the State or elsewhere, of any financial
obligation of the corporation --
(a) arising under section 127; or
10 (b) to which it becomes subject under Part 9.
(2) A guarantee is to be in such form and subject to such terms and
conditions as the Treasurer determines.
(3) The due payment of moneys payable by the Treasurer under a
guarantee --
15 (a) is by this subsection guaranteed by the State; and
(b) is to be made by the Treasurer and charged to the
Consolidated Fund, and this subsection appropriates that
Fund accordingly.
(4) The Treasurer is to cause any amounts received or recovered
20 from a corporation or otherwise in respect of any payment made
by the Treasurer under a guarantee to be paid into the
Consolidated Fund.
131. Charges for guarantee
(1) The Treasurer may, after consultation with the board of a
25 corporation, fix charges to be paid by the corporation to the
Treasurer for the benefit of the Consolidated Fund in respect of
a guarantee given under section 130.
(2) Payments by a corporation to the Treasurer in respect of any
charges under subsection (1) are required to be made at such
30 times, and in such instalments, as the Treasurer determines.
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Electricity Corporations Bill 2005
Financial provisions Part 6
Financial administration and audit Division 5
s. 132
Division 5 -- Financial administration and audit
132. Limited application of Financial Administration and Audit
Act 1985
Despite anything in the Financial Administration and Audit
5 Act 1985 that Act, other than the provisions referred to in
Schedule 4 clauses 34(2) and 35(2), does not apply to a
corporation or any person performing functions under this Act.
133. Financial administration and audit
(1) Schedule 4 has effect in relation to the financial administration
10 and audit of a corporation.
(2) Schedule 4 may be amended by regulations made by the
Governor in accordance with subsections (3) and (4).
(3) If --
(a) a provision of Schedule 4 that sets out the substance of a
15 provision of the Corporations Act, does not accurately
reflect the corresponding provision of the Corporations
Act as in force for the time being;
(b) the Corporations Act as in force for the time being does
not contain a provision that corresponds to a provision
20 of Schedule 4 that sets out the substance of a provision
of the Corporations Act; or
(c) the Corporations Act as in force for the time being
contains a provision relating to a matter provided for by
Schedule 4, the substance of which is not set out in
25 Schedule 4,
the Minister may recommend to the Governor, as soon as
practicable after the circumstance in paragraph (a), (b) or (c)
arises, that regulations be made under subsection (2).
(4) The regulations are to be in such form that Schedule 4 as
30 amended will, in the opinion of the Minister, be substantially
the same as the corresponding provisions of the Corporations
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Part 6 Financial provisions
Division 5 Financial administration and audit
s. 133
Act, but with such modifications as are consistent with the
policy of this Act.
(5) If because of the amendment of Schedule 4 by regulations under
subsection (2) it is necessary or expedient to --
5 (a) delete or alter a reference in this Act to a provision of
Schedule 4;
(b) include in this Act a reference to a provision of
Schedule 4; or
(c) make some other consequential modification to this Act,
10 the regulations may amend this Act for the purpose of deleting,
altering or including the reference or making the modification.
(6) Regulations are not to be made under subsection (2) except with
the Treasurer's concurrence.
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Electricity Corporations Bill 2005
Miscellaneous Part 7
s. 134
Part 7 -- Miscellaneous
134. Supplementary provision for laying document before
Parliament
(1) If --
5 (a) at the commencement of a period referred to in
section 69(4), 92(5), 95(4), 101(5), 103(2), 104(4),
107(3), 111(5), 114(6), 119(6), 126(4), 146 or
Schedule 2 clause 13(7) in respect of a document a
House of Parliament is not sitting; and
10 (b) the Minister is of the opinion that that House will not sit
during that period,
the Minister is to transmit a copy of the document to the Clerk
of that House.
(2) A copy of a document transmitted to the Clerk of a House is to
15 be taken to have been laid before that House.
(3) The laying of a copy of a document that is taken to have
occurred under subsection (2) is to be recorded in the Minutes,
or Votes and Proceedings, of the House on the first sitting day
of the House after the receipt of the copy by the Clerk.
20 135. Execution of documents
(1) A corporation is to have a common seal.
(2) A document is duly executed by a corporation if --
(a) the common seal of the corporation is affixed to it in the
presence of --
25 (i) 2 directors;
(ii) a director and the chief executive officer; or
(iii) a director and an executive officer;
or
(b) it is signed on behalf of the corporation by a person or
30 persons referred to in subsection (4).
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Part 7 Miscellaneous
s. 136
(3) The common seal of a corporation is not to be affixed to a
document except in accordance with this section.
(4) A corporation may, by writing under its common seal, authorise
a director, the chief executive officer, a member of staff or other
5 agent of the corporation to execute documents on its behalf.
(5) An authority under subsection (4) --
(a) may be given --
(i) either generally or in respect of a specified
matter or specified matters; and
10 (ii) so as to authorise 2 or more persons to execute
documents jointly;
and
(b) may be presumed by a person dealing with a corporation
to continue --
15 (i) during any period for which it is conferred; or
(ii) if subparagraph (i) does not apply, until notice of
termination of the authority is given to the person
so dealing.
(6) A document executed by a person under an authority under
20 subsection (4) is not to be regarded as a deed unless the person
executes it as a deed and is permitted to do so by the
authorisation.
(7) A document purporting to be executed in accordance with this
section is to be taken to be duly executed until the contrary is
25 shown.
136. Contract formalities
(1) In so far as the formalities of making, varying or discharging a
contract are concerned, a person acting under the authority of a
corporation may make, vary or discharge a contract in the name
30 of or on behalf of the corporation in the same manner as if that
contract were made, varied or discharged by a natural person.
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Miscellaneous Part 7
s. 137
(2) The making, variation or discharge of a contract in accordance
with subsection (1) is effectual in law and binds the corporation
concerned and other parties to the contract.
(3) Subsection (1) does not prevent a corporation from making,
5 varying or discharging a contract under its common seal.
137. Delegation by Treasurer
(1) In subsection (2) --
"Treasury officer" means an officer of the department that
principally assists the Minister administering the Financial
10 Administration and Audit Act 1985 in the administration of
that Act.
(2) The Treasurer may delegate to a Treasury officer any power or
duty of the Treasurer under another provision of this Act.
(3) The delegation must be in writing signed by the Treasurer.
15 (4) An officer to whom a power or duty is delegated under this
section cannot delegate that power or duty.
(5) An officer exercising or performing a power or duty that has
been delegated to the officer under this section is to be taken to
do so in accordance with the terms of the delegation, unless the
20 contrary is shown.
138. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed or are
necessary or convenient to be prescribed for giving effect to the
25 purposes of this Act.
(2) If there is any conflict or inconsistency between a provision
made by regulations under this Act and a provision made by
regulations under the Electricity Act 1945, the latter prevails.
page 81
Electricity Corporations Bill 2005
Part 8 Amendments to other written laws
s. 139
Part 8 -- Amendments to other written laws
139. Amendments to other Acts
The Acts mentioned in Schedule 5 are amended as set out in
that Schedule.
5 140. Power to amend subsidiary legislation
(1) The Governor, on the recommendation of the Minister, may
make regulations amending subsidiary legislation made under
any Act.
(2) The Minister may make a recommendation under subsection (1)
10 only if the Minister considers that each amendment proposed to
be made by the regulations is necessary or desirable as a
consequence of the enactment of this Act.
(3) Nothing in this section prevents subsidiary legislation from
being amended in accordance with the Act under which it was
15 made.
page 82
Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Preliminary Division 1
s. 141
Part 9 -- Transitional provisions for succession from
Western Power Corporation to new corporations
Division 1 -- Preliminary
141. Purpose of this Part
5 The purpose of this Part is to provide for transitional matters in
relation to the repeals effected by Schedule 5 clauses 11 and 19
and in particular to provide for --
(a) the Electricity Generation Corporation;
(b) the Electricity Networks Corporation;
10 (c) the Electricity Retail Corporation; and
(d) the Regional Power Corporation,
to stand in place of, and be the successors to, Western Power
Corporation, except so far as section 169 applies.
142. Terms used in this Part
15 (1) In this Part, unless the contrary intention appears --
"asset" means property of any kind whether tangible or
intangible, real or personal, corporeal or incorporeal and
includes without limitation --
(a) a chose in action;
20 (b) goodwill;
(c) a right, interest or claim of any kind in or to property,
whether arising from, accruing under, created or evidenced
by or the subject of, an instrument or otherwise and
whether liquidated or unliquidated, actual, contingent or
25 prospective;
"commencement day" means the day on which Part 2 comes
into operation;
"liability" means any liability, duty or obligation whether
actual, contingent or prospective, liquidated or
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Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 1 Preliminary
s. 142
unliquidated, and whether owed alone or jointly or jointly
and severally with any other person;
"new corporation" means one or more of --
(a) the Electricity Generation Corporation;
5 (b) the Electricity Networks Corporation;
(c) the Electricity Retail Corporation; or
(d) the Regional Power Corporation,
as the case may require;
"principal Act" means the Electricity Corporation Act 1994;
10 "records" means registers, papers, documents, minutes,
receipts, books of account and other records, however
compiled, recorded or stored;
"right" means any right, power, privilege or immunity whether
actual, contingent or prospective;
15 "the 1994 Act" means the Energy Corporations (Transitional
and Consequential Provisions) Act 1994;
"transfer order" means an order made under section 147, as
amended under section 153 or corrected under
section 189(1), and includes any schedule to a transfer
20 order;
"Western Power Corporation" means the body corporate that
was the corporation under the principal Act section 4(1)
before that section was repealed by Schedule 5 clause 11.
(2) For the purposes of this Part, a reference in an agreement or
25 instrument to the Electricity Corporation referred to in the
principal Act section 4(1) repealed by the Statutes (Repeals and
Minor Amendments) Act 2000 section 14(3) is to be taken to be
or include a reference to Western Power Corporation, unless the
context otherwise requires.
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Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Powers conferred on Minister Division 2
s. 143
143. Saving
The operation of any provision of this Part is not to be
regarded --
(a) as a breach of contract or confidence or otherwise as a
5 civil wrong;
(b) as a breach of any contractual provision prohibiting,
restricting or regulating the assignment or transfer of
assets, rights or liabilities or the disclosure of
information;
10 (c) as giving rise to any remedy by a party to an instrument
or as causing or permitting the termination of any
instrument, because of a change in the beneficial or legal
ownership of any asset, right or liability;
(d) as causing any contract or instrument to be void or
15 otherwise unenforceable; or
(e) as releasing or allowing the release of any surety.
Division 2 -- Powers conferred on Minister
144. Power for certain agreements to be made before
commencement day
20 (1) The purpose of this section is --
(a) to provide for agreements to be made under
subsection (2) before the commencement day; and
(b) to bring into existence the bodies corporate referred to in
section 4(1) to the limited extent necessary for those
25 agreements to be made.
(2) The Minister may, in the name and on behalf of each body
corporate mentioned in subsection (1), agree in writing with
Western Power Corporation, for the purposes of the A New Tax
System (Goods and Services Tax) Act 1999 of the
30 Commonwealth section 38-325, that the transfer of assets, rights
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Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 2 Powers conferred on Minister
s. 145
and liabilities, or of some assets, rights and liabilities, to a new
corporation under this Division is the supply of a going concern.
(3) Western Power Corporation is authorised to enter into the
agreements referred to in subsection (2).
5 (4) By this section --
(a) section 4(1) has effect; and
(b) a body corporate referred to in that section is
established,
to the extent necessary for the purposes of subsection (2), but to
10 no further extent.
145. Minister may give directions
(1) The Minister may give directions in writing to Western Power
Corporation requiring it to take any step that the Minister
considers necessary or convenient for achieving the purpose of
15 this Part.
(2) The reference in subsection (1) to the taking of any step
includes refraining from taking any step that Western Power
Corporation might otherwise take.
(3) Without limiting subsection (1), a direction under that
20 subsection may require Western Power Corporation to act in
accordance with the instructions of a committee of persons
appointed by the Minister and given responsibility for the
implementation of reform in the electricity industry.
(4) Western Power Corporation is to give effect to a direction under
25 subsection (1) despite anything in the principal Act.
(5) This section has effect despite the Statutory Corporations
(Liability of Directors) Act 1996 section 6(a).
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Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Passing of Western Power Corporation's assets and liabilities Division 3
to new corporations or the State
s. 146
146. Directions to be laid before Parliament
The Minister must, within 14 days after a direction is given
under section 145(1), cause the text of the direction to be laid
before each House of Parliament or dealt with under
5 section 134.
Division 3 -- Passing of Western Power Corporation's assets
and liabilities to new corporations or the State
Subdivision 1 -- Making of transfer orders
147. Minister to make order for allocation of assets and liabilities
10 (1) As soon as is practicable after this section comes into operation
the Minister is to make and publish in the Gazette one or more
orders specifying --
(a) how assets, rights and liabilities --
(i) of Western Power Corporation; or
15 (ii) of a kind referred to in section 150,
are to be allocated among the new corporations;
(b) any proceedings in which one or more of the new
corporations is to replace Western Power Corporation as
a party or parties; and
20 (c) the new corporation that, under section 158(b), is to
receive the records described in that section.
(2) An allocation under subsection (1)(a) may be made to --
(a) a new corporation; or
(b) one or more of the new corporations either jointly or as
25 tenants in common in equal or unequal shares.
(3) Without limiting subsection (1), an order under that subsection
may --
(a) provide for the allocation of income in respect of any
asset;
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Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 3 Passing of Western Power Corporation's assets and liabilities
to new corporations or the State
s. 148
(b) in respect of a particular liability, allocate a specified
share of the liability to one or more of the new
corporations;
(c) provide for the transfer, debiting, crediting or closing of,
5 or for otherwise dealing with, any account, reserve,
fund, provision, profit or liability for any levy;
(d) specify any person or thing by describing the person or
thing as a member of a class;
(e) for any asset or right or class of assets or rights --
10 (i) ascribe a value to; or
(ii) provide for the manner in which a value is to be
determined for,
the asset or right or assets or rights of that class;
(f) for any liability or class of liabilities --
15 (i) specify the amount of; or
(ii) provide for the manner in which an amount is to
be determined for,
the liability or class of liabilities; and
(g) contain such incidental or supplementary provisions as
20 the Minister thinks fit.
(4) Except where section 151 applies, a transfer order cannot be
made after the commencement day.
148. Order may provide for transfer to subsidiary
(1) A transfer order may provide that --
25 (a) an asset or right that is allocated to a new corporation is
to vest in; or
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Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Passing of Western Power Corporation's assets and liabilities Division 3
to new corporations or the State
s. 149
(b) a liability, or a share of a liability, that is allocated to a
new corporation is to become the liability of,
a subsidiary of the new corporation.
(2) If a transfer order so provides, Western Power Corporation is to
5 be taken --
(a) to continue to hold the asset or right; or
(b) to be liable for the liability,
until a further order is made under section 155.
149. Transfer order schedules
10 A transfer order may allocate assets, rights or liabilities by
reference to schedules in which they are specified, and those
schedules --
(a) need not be published in the Gazette; but
(b) must be available for inspection by the public at a place
15 identified in the order.
150. Treatment of certain internal arrangements of Western
Power Corporation
(1) An instrument that provides for arrangements between different
parts of the business and operations of Western Power
20 Corporation may be specified in a transfer order as if it created
contractual rights and liabilities.
(2) An instrument specified as described in subsection (1) is to be
regarded as if its provisions were contractual provisions
between different legal entities.
25 (3) The definitions of "liability" and "right" in section 142 include
contractual liabilities and rights that are to be regarded as
arising because of subsection (2), and those liabilities and rights
may be dealt with accordingly under this Part.
page 89
Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 3 Passing of Western Power Corporation's assets and liabilities
to new corporations or the State
s. 151
151. Power to make subsequent order
(1) If for any reason it is not practicable to allocate any asset, right
or liability to one or more of the new corporations under
section 147 before the commencement day --
5 (a) a transfer order is to specify that the asset, right or
liability is to be allocated under this section; and
(b) the Minister may make a further order under section 147
in respect of that asset, right or liability not later than
6 months after the commencement day.
10 (2) An order under subsection (1) is to have effect from the
commencement day.
(3) Western Power Corporation is to be taken --
(a) to continue to hold an asset or right; or
(b) to be liable for a liability,
15 to which subsection (1) applies until the further order is made.
152. References in Government agreements
(1) In this section --
"Government agreement" has the meaning given to that term
in the Government Agreements Act 1979 section 2.
20 (2) A transfer order is to specify for each provision in a
Government agreement in which there is --
(a) a reference to Western Power Corporation; or
(b) a reference to a body that under the 1994 Act section 49
is to be read as a reference to Western Power
25 Corporation,
whether that reference is to be read as a reference to --
(c) a specified new corporation; or
(d) 2 or more specified new corporations.
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Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Passing of Western Power Corporation's assets and liabilities Division 3
to new corporations or the State
s. 153
(3) A transfer order may, where subsection (2)(d) applies, specify
that a reference is to be read as a reference to new corporations
jointly or as tenants in common in equal or unequal shares.
(4) Subsection (2) does not apply to a provision of a Government
5 agreement that is spent or has had its effect.
153. Amendment of transfer orders
(1) The Minister may, before the commencement day, by further
order published in the Gazette, amend a transfer order.
(2) The Minister may, after the commencement day, by order
10 published in the Gazette --
(a) make any provision that is necessary to rectify any
unintentional omission from a transfer order; or
(b) amend a provision of a transfer order of the kind
provided for by section 147(3)(e), (f) or (g) or
15 section 152.
(3) An order under subsection (2) may be made so as to have effect
from the commencement day.
(4) To the extent that a provision of an order under subsection (2)
has effect on a day that is earlier than the day of its publication
20 in the Gazette, the provision does not operate so as --
(a) to affect, in a manner prejudicial to any person (other
than the State or a new corporation), the rights of that
person existing before the day of its publication; or
(b) to impose liabilities on any person (other than the State
25 or a new corporation) in respect of anything done or
omitted to be done before the day of publication.
page 91
Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 3 Passing of Western Power Corporation's assets and liabilities
to new corporations or the State
s. 154
Subdivision 2 -- Operation of transfer orders
154. Allocation to one new corporation
(1) This section applies where assets, rights or liabilities of Western
Power Corporation are allocated to a new corporation by a
5 transfer order.
(2) On the commencement day the assets and rights vest in the new
corporation by force of this subsection.
(3) On the commencement day the liabilities (including a share of a
liability) become, by force of this subsection, the liabilities of
10 the new corporation.
(4) Any agreement or instrument relating to the assets, rights and
liabilities referred to in subsections (2) and (3) has effect on and
after the commencement day, by force of this subsection, as if a
reference to the relevant new corporation were substituted in the
15 agreement or instrument for a reference to --
(a) Western Power Corporation; or
(b) a body that under the 1994 Act Part 3 is to be read as a
reference to Western Power Corporation,
except to the extent that --
20 (c) any provision of a transfer order made under
section 147(3)(b);
(d) section 159; or
(e) the relevant context,
otherwise requires.
25 (5) Subject to any provision of a transfer order made under
section 147(3)(b), any proceedings or remedy that, before the
commencement day, might have been --
(a) commenced by; or
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Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Passing of Western Power Corporation's assets and liabilities Division 3
to new corporations or the State
s. 155
(b) available against or to,
Western Power Corporation in relation to the assets, rights and
liabilities referred to in subsections (2) and (3), on and after that
day --
5 (c) may be commenced by the relevant new corporation;
and
(d) are available against or to the relevant new corporation.
(6) Any act, matter or thing --
(a) done; or
10 (b) omitted to be done,
before the commencement day by, to or in respect of Western
Power Corporation in relation to the assets, rights and liabilities
referred to in subsections (2) and (3) is to be taken, on and after
that day, to have been --
15 (c) done; or
(d) omitted to be done,
by, to or in respect of the relevant new corporation, to the extent
that the act, matter or thing has any force or effect.
(7) All other provisions of a transfer order relevant to this section
20 also have effect on and after the commencement day.
155. Order for transfer to subsidiary
(1) If a transfer order makes a provision under section 148, the
Minister may after the commencement day by order published
in the Gazette, declare that --
25 (a) the relevant asset or right is vested in; or
(b) the relevant liability, or share of a liability, has become
the liability of,
a specified subsidiary of the new corporation.
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Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 3 Passing of Western Power Corporation's assets and liabilities
to new corporations or the State
s. 156
(2) An order cannot be made under subsection (1) later than
6 months after the commencement day.
(3) An order under subsection (1) has effect according to its tenor.
(4) If an order is made under this section --
5 (a) section 154(4), (5) and (6) have effect, with all
necessary changes, in relation to any asset, right or
liability referred to in the order as if references to "the
relevant new corporation" were references to the
subsidiary concerned; and
10 (b) Western Power Corporation must, as soon as is
practicable after the order is made, deliver to the
subsidiary all records relating to the assets, rights and
liabilities to which the order applies.
156. Allocation to more than one new corporation
15 (1) This section applies where assets, rights or liabilities of Western
Power Corporation are allocated by a transfer order to 2 or more
of the new corporations.
(2) On the commencement day, the assets and rights allocated to
2 or more of the new corporations jointly vest in those
20 corporations jointly by force of this subsection.
(3) On the commencement day, the assets and rights allocated to
2 or more of the new corporations as tenants in common, by
force of this subsection, vest in those corporations as tenants in
common in the shares specified in a transfer order.
25 (4) On the commencement day, the liabilities allocated to 2 or more
of the new corporations jointly by a transfer order become, by
force of this subsection, the liabilities of those corporations
jointly.
(5) Any agreement or instrument relating to the assets, rights and
30 liabilities referred to in subsections (2), (3) and (4) has effect on
and after the commencement day, by force of this subsection, as
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if a reference to the relevant new corporations were substituted
in the agreement or instrument for a reference to --
(a) Western Power Corporation; or
(b) a body that under the 1994 Act Part 3 is to be read as a
5 reference to Western Power Corporation,
except to the extent that --
(c) any provision of a transfer order made under
section 147(3)(b);
(d) section 159; or
10 (e) the relevant context,
otherwise requires.
(6) Subject to any provision of a transfer order made under
section 147(3)(b), any proceedings or remedy that, before the
commencement day, might have been --
15 (a) commenced by; or
(b) available against or to,
Western Power Corporation in relation to the assets, rights and
liabilities referred to in subsections (2), (3) and (4), on and after
that day --
20 (c) may be commenced by; and
(d) are available against or to,
the relevant new corporations jointly or severally in accordance
with a transfer order.
(7) Any act, matter or thing --
25 (a) done; or
(b) omitted to be done,
before the commencement day by, to or in respect of Western
Power Corporation in relation to the assets, rights and liabilities
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referred to in subsections (2), (3) and (4) is to be taken, on and
after that day, to have been --
(c) done; or
(d) omitted to be done,
5 by, to or in respect of the relevant new corporations jointly or
severally in accordance with the transfer order, to the extent that
that act, matter or thing has any force or effect.
(8) All other provisions of a transfer order relevant to this section
also have effect on and after the commencement day.
10 157. Replacement of Western Power Corporation in proceedings
(1) In accordance with any provision of a transfer order made under
section 147(1)(b), on and after the commencement day --
(a) a new corporation is a party; or
(b) 2 or more of the new corporations jointly are parties,
15 as the case may be, to any proceedings by or against Western
Power Corporation commenced before the commencement day.
(2) Any act, matter or thing --
(a) done; or
(b) omitted to be done,
20 before the commencement day by, to or in respect of Western
Power Corporation in relation to proceedings mentioned in
subsection (1) is to be taken, on and after that day, to have
been --
(c) done; or
25 (d) omitted to be done,
by, to or in respect of the relevant new corporation or
corporations, to the extent that the act, matter or thing has any
force or effect.
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158. Handing over of records
As soon as is practicable after the commencement day, Western
Power Corporation is to deliver to --
(a) the relevant new corporation; or
5 (b) the corporation that under section 147(1)(c) is specified
in a transfer order for the purposes of this paragraph,
as the case may require, all records relating to --
(c) where section 154 applies, the assets, rights and
liabilities referred to in section 154(2) and (3);
10 (d) where section 156 applies, the assets, rights and
liabilities referred to in section 156(2), (3) and (4); and
(e) where section 157 applies, the proceedings referred to in
that section.
159. Changes to Government agreements
15 On and after the commencement day a reference to --
(a) Western Power Corporation; or
(b) a body that under the 1994 Act section 49 is to be read
as a reference to Western Power Corporation,
that in accordance with a provision of a transfer order made
20 under section 152 is to be read as a reference to --
(c) a specified new corporation; or
(d) 2 or more specified new corporations,
has effect by force of this section as provided in the order.
Subdivision 3 -- Re-allocation of assets, rights and liabilities
25 160. Order for re-allocation
(1) The Minister may, by order published in the Gazette, declare
that any asset or right that vested in a new corporation, or 2 or
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more of the new corporations, under section 154(2), 156(2)
or 156(3) is instead --
(a) vested in another new corporation; or
(b) vested, or vested differently, in 2 or more of the new
5 corporations jointly or as tenants in common in equal or
unequal shares.
(2) The Minister may, by order published in the Gazette, declare
that --
(a) a liability; or
10 (b) a share of a liability referred to in section 147(3)(b),
that became a liability of a new corporation, or 2 or more of the
new corporations, under section 154(3) or 156(4) is instead --
(c) the liability of another new corporation; or
(d) the joint liability of 2 or more of the new corporations or
15 of a different combination of new corporations.
(3) If an order under this section provides for --
(a) an asset or right to be vested in; or
(b) a liability, or a share of a liability, to become a liability
of,
20 2 or more of the new corporations, the order is to specify the
corporation that, under section 162(b), is to receive the records
described in that section.
(4) An order cannot be made under this section later than 6 months
after the commencement day.
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161. Re-allocation to have effect from commencement day
(1) In this section --
"corporation or corporations previously concerned" means
the corporation or corporations --
5 (a) in which the assets or rights to which an order under
section 160 applies were vested; or
(b) which was or were subject to any liability to which
such an order applies,
immediately before the order was made.
10 (2) Except as otherwise provided in the order, an order under
section 160 has effect from the commencement day as if --
(a) any asset or right to which the order applies had never
been vested in; and
(b) any liability to which the order applies had never been
15 the liability of,
the corporation or corporations previously concerned.
(3) Despite subsection (1), a corporation previously concerned is
not --
(a) required to account for any benefit received; or
20 (b) entitled to reimbursement for any liability discharged,
before the day on which an order is made, except to the extent
that provision is otherwise made in the order.
(4) An order under section 160 may make any savings or
transitional provision that is necessary or expedient in relation
25 to any asset, right or liability to which it applies including
provisions in respect of --
(a) any --
(i) agreement or instrument; or
(ii) proceedings or remedy,
30 relating to the asset, right or liability; or
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(b) any act, matter or thing --
(i) done; or
(ii) omitted to be done,
by, to or in respect of Western Power Corporation or a
5 new corporation.
(5) An order under section 160 cannot be made so as --
(a) to affect the rights of any person other than the State or a
new corporation; or
(b) to impose liabilities on any person other than the State
10 or a new corporation.
162. Handing over of records
If an order is made under section 160, the corporation or
corporations previously concerned must, as soon as is
practicable after the order is made, deliver to --
15 (a) the relevant new corporation; or
(b) the new corporation specified as mentioned in
section 160(3),
all records relating to the assets, rights and liabilities to which
the order applies.
20 Subdivision 4 -- Order that allocated assets or liabilities pass instead
to the State
163. Minister may order that section 169 is to apply
(1) The Minister may, by order published in the Gazette, declare
that, on and after a day specified in the order --
25 (a) any asset or right that vested in --
(i) a new corporation, or 2 or more of the new
corporations, under section 154(2), 156(2)
or 156(3); or
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(ii) a subsidiary of a new corporation, by order under
section 155(1);
or
(b) any --
5 (i) liability; or
(ii) share of a liability referred to in
section 147(3)(b),
that became a liability of --
(iii) a new corporation, or 2 or more of the new
10 corporations, under section 154(3) or 156(4); or
(iv) a subsidiary of a new corporation, by order under
section 155(1),
is instead to be dealt with under section 169(3) or (4).
(2) An order cannot be made under this section later than 6 months
15 after the commencement day.
164. Effect of order
(1) An order under section 163 has effect according to its tenor in
relation to the assets, rights and liabilities to which it applies.
(2) Any agreement or instrument relating to the assets, rights and
20 liabilities referred to in subsection (1) has effect on and after the
day specified in the order (the "specified day"), by force of this
subsection, as if the State were substituted in the agreement or
instrument for the new corporation, or a subsidiary, or new
corporations previously entitled or liable (the "corporation or
25 corporations previously concerned"), except to the extent
that --
(a) any provision of a transfer order made under
section 147(3)(b);
(b) section 159; or
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(c) the relevant context,
otherwise requires.
(3) Subject to any provision of a transfer order made under
section 147(3)(b), any proceedings or remedy that, before the
5 specified day, might have been --
(a) commenced by; or
(b) available against or to,
the corporation or corporations previously concerned in relation
to the assets, rights and liabilities referred to in subsection (1),
10 on and after that day --
(c) may be commenced by the State; and
(d) are available against or to the State.
(4) Any act, matter or thing --
(a) done; or
15 (b) omitted to be done,
before the specified day by, to or in respect of the corporation or
corporations previously concerned in relation to the assets,
rights and liabilities referred to in subsection (1) is to be taken,
on and after that day, to have been --
20 (c) done; or
(d) omitted to be done,
by, to or in respect of the State, to the extent that that act, matter
or thing has any force or effect.
165. Handing over of records
25 As soon as is practicable after the specified day, the corporation
or corporations previously concerned must deliver to the
Minister all records relating to the assets, rights and liabilities
referred to in section 164(1).
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Subdivision 5 -- Replacement of party in proceedings
166. Order for replacement
(1) The Minister may, by order published in the Gazette, declare
that, on and after a day specified in the order (the "specified
5 day"), a new corporation or 2 or more of the new corporations
that became a party or parties to proceedings under
section 157(1) are replaced by another new corporation or other
new corporations jointly.
(2) If an order provides for 2 or more of the new corporations to be
10 parties to proceedings, the order is to specify the corporation
that, under section 168(b), is to receive the records described in
that section.
(3) An order cannot be made under this section later than 6 months
after the commencement day.
15 167. Effect of order
(1) An order under section 166 has effect according to its tenor.
(2) Any act, matter or thing --
(a) done; or
(b) omitted to be done,
20 before the specified day by, to or in respect of the corporation or
corporations that have been replaced in relation to the
proceedings is to be taken, on and after that day, to have
been --
(c) done; or
25 (d) omitted to be done,
by, to or in respect of the relevant new corporation or the
relevant new corporations jointly, to the extent that that act,
matter or thing has any force or effect.
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168. Handing over of records
As soon as is practicable after the specified day, the corporation
or corporations that have been replaced must deliver to --
(a) the relevant new corporation; or
5 (b) the new corporation specified as mentioned in
section 166(2),
all records relating to the proceedings.
Subdivision 6 -- Assets, liabilities and proceedings not otherwise
provided for
10 169. Unallocated assets and liabilities to be dealt with by Minister
(1) This section applies to --
(a) any asset or right of Western Power Corporation that
under this Division does not vest in; and
(b) any liability of Western Power Corporation that under
15 this Division does not become a liability of,
a new corporation or 2 or more of the new corporations or a
subsidiary of a new corporation.
(2) This section has effect subject to --
(a) any order made under section 151 or 153(2)(a); and
20 (b) regulations made under section 189(1) or (2).
(3) An asset or right to which this section applies is to be dealt
with --
(a) after the commencement day; or
(b) where an order under section 163(1) applies, after the
25 day specified in the order,
as the Minister directs.
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(4) A liability to which this section applies, so far as it is properly
due, is to be discharged --
(a) after the commencement day; or
(b) where an order under section 163(1) applies, after the
5 day specified in the order,
in such manner and from such source as the Minister, with the
approval of the Treasurer, directs.
(5) The Minister has the powers that are necessary or convenient
for the purposes of this section.
10 170. Provisions incidental to section 169
(1) This section does not apply to assets, rights and liabilities for
which provision is made in section 164.
(2) Any agreement or instrument relating to the assets, rights and
liabilities referred to in section 169 has effect on and after the
15 commencement day, by force of this subsection, as if a
reference to the State were substituted in the agreement or
instrument for a reference to --
(a) Western Power Corporation; or
(b) a body that under the 1994 Act Part 3 is to be read as a
20 reference to Western Power Corporation,
except to the extent that --
(c) section 159; or
(d) the relevant context,
otherwise requires.
25 (3) Any proceedings or remedy that, before the commencement
day, might have been commenced by or available against or to
Western Power Corporation in relation to the assets, rights and
liabilities referred to in section 169, on and after that day may
be commenced by and are available against or to the State.
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(4) Any act, matter or thing --
(a) done; or
(b) omitted to be done,
before the commencement day by, to or in respect of Western
5 Power Corporation in relation to the assets, rights and liabilities
referred to in section 169 is to be taken on and after that day to
have been --
(c) done; or
(d) omitted to be done,
10 by, to or in respect of the State, to the extent that the act, matter
or thing has any force or effect.
171. State to be party to proceedings if no provision made
(1) If --
(a) immediately before the commencement day Western
15 Power Corporation is a party to any proceedings; and
(b) no provision is made under section 147(1)(b) for it to be
replaced as a party to those proceedings,
the State is, on and from the commencement day, by force of
this subsection a party to those proceedings in place of Western
20 Power Corporation.
(2) Any act, matter or thing --
(a) done; or
(b) omitted to be done,
before the commencement day by, to or in respect of Western
25 Power Corporation in relation to the proceedings is to be taken,
on and after that day, to have been --
(c) done; or
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(d) omitted to be done,
by, to or in respect of the State, to the extent that the act, matter
or thing has any force or effect.
172. Handing over of records
5 As soon as is practicable after the commencement day, Western
Power Corporation is to deliver to the Minister all records
relating to --
(a) assets, rights and liabilities that, after that day, are to be
dealt with under section 169(3) and (4); and
10 (b) any proceedings to which section 171 applies.
Subdivision 7 -- Other matters relating to passing of assets
and liabilities
173. Continuation of guarantees in respect of Western Power
Corporation
15 (1) This section applies to --
(a) a guarantee under the principal Act section 85(1); and
(b) a guarantee continued in force by the 1994 Act
section 51,
that was in force immediately before the commencement day.
20 (2) A guarantee referred to in subsection (1) is not affected by --
(a) any provision of, or made under, this Part, including
without limitation a transfer of any liability of Western
Power Corporation to a new corporation, or a subsidiary,
or to 2 or more new corporations --
25 (i) under section 154 or 156;
(ii) by order under section 155(1) or 160(2); or
(iii) by regulations under Division 7;
or
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(b) any transfer, vesting or assumption of any liability of
Western Power Corporation to, in or by a new
corporation or 2 or more new corporations by any other
means.
5 (3) A guarantee referred to in subsection (1) is to continue in force
and is to be read and construed, on and from --
(a) the commencement day; or
(b) the day on which a transfer, vesting or assumption by
any other means referred to in subsection (1) is
10 effective,
as if it were a guarantee in respect of the new corporation or
corporations or the subsidiary to, in or by which the liabilities
have been transferred, vested or assumed.
(4) Despite its repeal by Schedule 5 clause 11, the principal Act
15 section 85(3) is to be taken to continue to apply for the purposes
of subsection (3).
(5) The Treasurer may enter into any instrument confirming the
continued liability of the State under a guarantee referred to in
subsection (1).
20 (6) By virtue of this subsection, any sum paid by the Treasurer
under a guarantee referred to in subsection (1) in respect of a
new corporation constitutes a charge on the assets of the
corporation.
174. Guarantees to which section 173 does not apply
25 (1) Subject to subsection (2), Part 6 Division 4 is to be taken to
apply to a liability of a new corporation if a guarantee of that
liability cannot be preserved under section 173, whether because
the guarantee is governed otherwise than by the law of the State
or for any other reason.
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(2) If --
(a) a guarantee (the "original guarantee") cannot be
preserved as mentioned in subsection (1); and
(b) the lender requests the Treasurer to exercise powers
5 referred to in that subsection to give a guarantee in the
same terms as the original guarantee,
the Treasurer is to comply with that request.
175. Certain joint tenancies preserved
(1) In this section --
10 "Gas Corporation assignee" has the meaning given to the term
"assignee" in the Gas Corporation (Business Disposal)
Act 1999 section 14.
(2) The vesting of any asset held by Western Power Corporation as
a joint tenant with a Gas Corporation assignee in a new
15 corporation or a subsidiary --
(a) by this Part; or
(b) by an order or regulations made under this Part,
does not sever the joint tenancy, and the new corporation or the
subsidiary holds the asset as a joint tenant with the Gas
20 Corporation assignee.
176. Western Power Corporation to complete necessary
transactions
(1) This section applies if --
(a) an asset, right or liability to which this Part applies is
25 required to be vested in or succeeded to by a new
corporation or 2 or more new corporations; but
(b) that vesting or succession cannot be properly effected by
operation of this Part, whether because the matter is
governed otherwise than by the law of the State, or for
30 any other reason.
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(2) Western Power Corporation --
(a) is to be taken to continue to hold or be liable for that
asset, right or liability until it is effectively vested in or
succeeded to by the new corporation or corporations
5 concerned in accordance with this Part; and
(b) is to take all practicable steps for the purpose of
ensuring that such vesting or succession occurs.
(3) The fact that subsection (2)(a) applies to an asset, right or
liability that is allocated to a new corporation or 2 or more new
10 corporations under this Part does not affect the duty of the
corporation or corporations to account for and report on that
asset, right or liability under this Act.
177. Exemption from State taxation
(1) In this section --
15 "State tax" includes stamp duty chargeable under the Stamp
Act 1921 and any other tax, duty, fee, levy or charge under
a law of the State.
(2) State tax is not payable in relation to --
(a) anything that occurs by the operation of this Part; or
20 (b) anything done --
(i) under this Part;
(ii) to give effect to this Part; or
(iii) for a purpose connected with or arising out of,
giving effect to this Part,
25 including a transaction entered into or an instrument or
document of any kind made, executed, lodged or given.
(3) The Treasurer or a person authorised by the Treasurer may, at
the request of a new corporation, certify in writing that a
specified thing --
30 (a) occurred by the operation of this Part; or
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(b) was done --
(i) under this Part;
(ii) to give effect to this Part; or
(iii) for a purpose connected with, or arising out of,
5 giving effect to this Part.
(4) For all purposes and in all proceedings, a certificate under
subsection (3) is conclusive evidence of the matters it certifies,
except so far as the contrary is shown.
178. Registration of documents
10 (1) In subsection (2) --
"relevant officials" means --
(a) the Registrar of Titles;
(b) the Registrar of Deeds;
(c) the Ministers respectively administering the Mining
15 Act 1978 and the Land Administration Act 1997; or
(d) any other person authorised by a written law to
record and give effect to the registration of
documents relating to transactions affecting any
estate or interest in land or any other property.
20 (2) The relevant officials are to take notice of the provisions of --
(a) this Part and any regulations made under Division 7; and
(b) a transfer order or any other order made under this Part,
and are empowered to record and register in the appropriate
manner the documents necessary to show the effect of those
25 provisions.
(3) Without limiting subsection (1), a statement in an instrument is
evidence of the facts stated if --
(a) the instrument is executed by a new corporation, or a
subsidiary, or 2 or more new corporations; and
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(b) the statement is to the effect that any estate or interest in
land or other property has become vested in --
(i) the new corporation, or a subsidiary; or
(ii) 2 or more new corporations jointly or in
5 specified shares,
under section 154 or 156, an order under section 155(1)
or 160(1) or regulations made under Division 7.
Division 4 -- Staff
179. Transition of employment
10 (1) Western Power Corporation may, before the commencement
day --
(a) determine which new corporation is to be, on and from
that day, the employer of each person who is a member
of staff, as defined in the principal Act, before the
15 commencement day; and
(b) give to each such person a notice in writing of the
determination made in respect of him or her.
(2) A notice given to a person under subsection (1)(b) is to have
effect, after the commencement of section 18, as if it were an
20 agreement made under that section between --
(a) the person; and
(b) the board of the new corporation specified in the notice,
for the employment of that person as a member of the staff of
that corporation.
25 180. Employees' rights preserved
Except as otherwise agreed by an employee, the change from
employment by Western Power Corporation to employment by
a new corporation does not --
(a) affect the employee's remuneration and other terms and
30 conditions of employment;
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(b) prejudice the employee's existing or accruing rights;
(c) affect any rights under a superannuation scheme; or
(d) interrupt continuity of service.
Division 5 -- Contracts with tariff customers
5 181. Minister to prescribe contracts
(1) In this section --
"tariff customer" means a person who, immediately before the
commencement day, was supplied with electricity by
Western Power Corporation or a subsidiary of that
10 corporation (otherwise than under a written contract) in
relation to which the person was liable to pay fees and
charges prescribed under the Energy Operators (Powers)
Act 1979 section 124 or the Electricity Industry Act 2004
section 132.
15 (2) A tariff customer is to be taken on and from the commencement
day to have entered into a contract with --
(a) the Electricity Retail Corporation; or
(b) the Regional Power Corporation,
as the case requires, for the supply of electricity.
20 (3) The Minister, by order published in the Gazette, is to prescribe a
form of contract for the purposes of subsection (2), and the
contract referred to in that subsection is to be taken to be in the
form so prescribed.
(4) An order under subsection (3) --
25 (a) may specify different forms of contract in respect of
different classes of tariff customers; and
(b) may be amended, replaced or revoked by the Minister
by order published in the Gazette.
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Division 6 -- Other transitional provisions
182. Annual report
(1) Western Power Corporation is to --
(a) do all things that are necessary to ensure that any annual
5 report under the principal Act section 62 that --
(i) was required for a financial year before the
commencement day; but
(ii) was not sent to the Minister before that day,
is completed and sent to the Minister; and
10 (b) prepare a report under that section for the period from
the preceding 1 July to the commencement day.
(2) If the period referred to in subsection (1)(b) is less than a year
the report is to be prepared as if that period were a full financial
year.
15 (3) Despite the repeals effected by Schedule 5 clauses 11 and 19,
the reports referred to in subsection (1) are to be completed and
dealt with in accordance with the provisions contained in the
principal Act Part 4 Division 3 and Schedule 3.
183. Continuation of certain directions given to Western Power
20 Corporation
(1) The Western Power Corporation (Gas Supply) Direction 2000
continues in force on and after the commencement day as if --
(a) it were an instrument under section 114(2) served on
each of the Electricity Generation Corporation and the
25 Electricity Retail Corporation; and
(b) references in it to the corporation were references to
each of the corporations mentioned in paragraph (a).
(2) The direction given to Western Power Corporation under the
principal Act section 66 on 7 April 2005 (which relates to
30 generating works) continues in force on and after the
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Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Other transitional provisions Division 6
s. 184
commencement day as if it were a direction given to the
Electricity Generation Corporation under section 111.
184. Completion of things commenced
Anything commenced to be done by Western Power
5 Corporation under the principal Act before the commencement
day may be continued by a new corporation so far as the doing
of that thing is, after the commencement day --
(a) within the functions of; and
(b) relevant to,
10 the new corporation.
185. Continuing effect of things done
Any act, matter or thing done or omitted to be done before the
commencement day by, to or in respect of Western Power
Corporation, to the extent that the act, matter or thing --
15 (a) has any force; and
(b) is not governed by section 154(6), 156(7), 157(2),
164(4), 170(4), 171(2) or 183(1) or (2),
is to be taken to have been done or omitted by, to or in respect
of a new corporation so far as the act, matter or thing is relevant
20 to that corporation.
186. Immunity to continue
If Western Power Corporation had the benefit of any immunity
in respect of an act, matter or thing done or omitted before the
commencement day, the immunity continues in that respect for
25 the benefit of a new corporation so far as the act, matter or thing
is relevant to that corporation.
page 115
Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 6 Other transitional provisions
s. 187
187. Agreements and instruments generally
(1) In this section --
"instrument" includes subsidiary legislation;
"relevant new corporation", in relation to an agreement or
5 instrument, means any new corporation that after the
commencement day has the function of Western Power
Corporation in the performance of which the agreement or
instrument was made.
(2) This section applies to an agreement or instrument subsisting
10 immediately before the commencement day that does not come
within the provisions of section 154(4), 156(5), 159, 170(2)
or 183(1) or (2).
(3) An agreement or instrument to which this section applies that
contains a reference to --
15 (a) Western Power Corporation; or
(b) a body that under the 1994 Act Part 3 is to be read as a
reference to Western Power Corporation,
has effect on and after the commencement day as if any
reference in the agreement or instrument to Western Power
20 Corporation, or the body, were, unless the context otherwise
requires, a reference to any relevant new corporation.
188. Western Power Corporation to perform necessary
transitional functions
(1) Despite the repeal of the principal Act section 4 by Schedule 5
25 clause 11, Western Power Corporation continues in existence so
that it can --
(a) perform the functions described in sections 148(2),
151(3), 158, 162, 172, 176 and 182; and
(b) perform any other function required for the purposes of
30 this Part that may be prescribed by regulations made by
the Governor.
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Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Making of further provision by regulation Division 7
s. 189
(2) For the purpose of subsection (1), Western Power
Corporation --
(a) is to be constituted by a person or persons appointed by
the Minister; and
5 (b) is to perform the functions referred to in subsection (1)
through that person or those persons,
and that subsection does not affect the abolition of the board of
Western Power Corporation by virtue of the repeal of the
principal Act Part 2 Division 2.
10 (3) The person or persons referred to in subsection (2)(a) hold
office at the pleasure of the Minister and on such terms and
conditions as the Minister determines.
(4) Western Power Corporation as constituted under this section has
the powers that are necessary or convenient for the purposes of
15 subsection (1).
(5) A new corporation is to provide the clerical or other assistance
that Western Power Corporation reasonably requests it to
provide for the purpose of performing the functions described in
subsection (1).
20 Division 7 -- Making of further provision by regulation
189. Powers of rectification and similar matters
(1) If in the opinion of the Minister --
(a) an error has been made in a provision of a transfer order
that cannot be rectified by the making of an order under
25 section 160(1) or (2); or
(b) there has been an omission from a transfer order that
cannot be rectified under section 153(2),
the Governor may by regulations make such provision as is
necessary or expedient to correct, and deal with any
30 consequences of, the error or omission.
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Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 7 Making of further provision by regulation
s. 190
(2) If in the opinion of the Minister it is necessary, later than the
period of 6 months after the commencement day --
(a) to make an order referred to in section 151(1)(b);
(b) to make a declaration of the kind provided for by
5 section 160(1) or (2); or
(c) to make an order of the kind referred to in
section 155(1), 163(1) or 166(1),
the Governor may by regulations make such provision as could
have been made under that section before the expiration of the
10 period of 6 months.
(3) Regulations under this section may make any provision of an
incidental or supplementary nature that may be expedient.
190. Further provision may be made by regulation
(1) If there is no sufficient provision in this Part for any matter or
15 thing necessary or convenient to achieve the purpose described
in section 141, the Governor may make that provision by
regulations.
(2) If in the opinion of the Minister an anomaly arises in the
carrying out of any provision of --
20 (a) this Part; or
(b) a transfer order or other order under this Part,
the Governor may by regulations --
(c) modify that provision to remove the anomaly; and
(d) make such provision as is necessary or expedient to
25 achieve the purpose described in section 141 in the
intended manner.
191. Regulations may operate from the commencement day
(1) Regulations may be made under this Division to have effect
from the commencement day.
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Electricity Corporations Bill 2005
Transitional provisions for succession from Western Power Part 9
Corporation to new corporations
Indemnities and guarantees Division 8
s. 192
(2) To the extent that a provision of such regulations has effect on a
day that is earlier than the day of its publication in the Gazette,
the provision does not operate so as --
(a) to affect, in a manner prejudicial to any person (other
5 than the State or a new corporation), the rights of that
person existing before the day of its publication; or
(b) to impose liabilities on any person (other than the State
or a new corporation) in respect of anything done or
omitted to be done before the day of publication.
10 Division 8 -- Indemnities and guarantees
192. Treasurer may give indemnity and guarantee
(1) The Treasurer may, in the name and on behalf of the State, give
to --
(a) a person who is or has been a director or officer of
15 Western Power Corporation or of a subsidiary of that
corporation; or
(b) a member or alternate member of a committee referred
to in section 145(3),
an indemnity against liability or a guarantee of payment in
20 respect of --
(c) the doing of anything, whether before or after the
commencement day, that is required to achieve the
purpose of this Part; or
(d) an omission to do anything, whether before or after the
25 commencement day, if the omission is required to
achieve the purpose of this Part.
(2) The payment of any money under an indemnity or guarantee
given under this section is to be made by the Treasurer and
charged to the Consolidated Fund, which this section
30 appropriates to the necessary extent.
page 119
Electricity Corporations Bill 2005
Part 9 Transitional provisions for succession from Western Power
Corporation to new corporations
Division 8 Indemnities and guarantees
s. 192
(3) In subsection (1) --
"liability" includes civil liability under the Corporations
Act 2001 of the Commonwealth.
page 120
Electricity Corporations Bill 2005
Provisions about the constitution and proceedings of boards Schedule 1
cl. 1
Schedule 1 -- Provisions about the constitution and
proceedings of boards
[s. 10]
1. Meaning of "director"
5 In clauses 2, 3, 4 and 5(1) --
"director" does not, if the chief executive officer is a director,
include him or her in that capacity.
2. Term of office
(1) Subject to clause 3, a director holds office for such period, not
10 exceeding 3 years, as is specified in the instrument of appointment,
and is eligible for reappointment.
(2) Periods of appointment are to be fixed in a way that results in
approximately one-third of the directors retiring each year.
(3) A director, unless he or she sooner resigns or is removed from office,
15 continues in office until his or her successor comes into office, even if
the period for which the director was appointed has expired.
(4) A director's duties are not required to be performed on a full-time
basis.
3. Resignation and removal
20 (1) A director may resign from office by notice in writing delivered to the
Minister.
(2) The Governor may at any time remove a director from office and is
not required to give any reason for doing so.
4. Chairperson and deputy chairperson
25 (1) The Governor is to appoint a director to be chairperson and another to
be deputy chairperson, appointments in each case being made on the
nomination of the Minister.
(2) The chief executive officer, if he or she is a director, is not eligible for
appointment under subclause (1).
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Schedule 1 Provisions about the constitution and proceedings of boards
cl. 5
(3) Where the chairperson is unable to act because of sickness, accident
or other cause, the deputy chairperson is to act in the chairperson's
place.
(4) Where the deputy chairperson is acting in place of the chairperson at a
5 meeting, clause 5(1) applies as if the deputy chairperson were absent
from the meeting.
5. Alternate directors
(1) The Minister may in writing appoint a person to act temporarily in
place of a director who is unable to act because of sickness, absence
10 or other cause.
(2) A person appointed under subclause (1), while acting according to the
tenor of the appointment --
(a) is to be taken to be a director; and
(b) is entitled to remuneration under section 11.
15 (3) Where the chief executive officer of a corporation is a director he or
she may, in writing delivered to the chairperson of the board of the
corporation or the person presiding at a meeting of the board, appoint
a senior officer of the corporation to represent him or her at a meeting
if --
20 (a) he or she is unable to attend by reason of sickness, absence or
other cause; and
(b) the senior officer is a person who has been approved by the
board for the purposes of this subclause.
(4) While attending a meeting by virtue of such a nomination the officer
25 is to be taken to be a director.
(5) Subclause (3) does not apply if there is a person acting in place of the
chief executive officer under section 17.
(6) No act or omission of a person acting in place of another under this
clause may be questioned on the ground that the occasion for the
30 appointment or acting had not arisen or had ceased.
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Provisions about the constitution and proceedings of boards Schedule 1
cl. 6
6. Meetings
(1) The first meeting of a board is to be convened by the chairperson and,
subject to subclause (2), subsequent meetings are to be held at such
times and places as the board determines.
5 (2) A special meeting of a board may at any time be convened by the
chairperson or any 2 directors.
(3) The chairperson, or the deputy chairperson acting under clause 4(3), is
to preside at all meetings of a board at or in which he or she is
present, or participating under clause 7.
10 (4) If both the chairperson and the deputy chairperson are not present or
participating, the directors present or participating are to appoint a
director to preside.
(5) At any meeting of a board --
(a) 3 directors constitute a quorum; and
15 (b) in the case of an equality of votes the person presiding has a
casting vote in addition to a deliberative vote.
7. Telephone and video meetings
Despite anything in this Schedule, a communication between directors
constituting a quorum under clause 6(5)(a) by telephone or
20 audiovisual means is a valid meeting of directors, but only if each
participating director is capable of communicating with every other
participating director instantaneously at all times during the
proceedings.
8. Resolution may be passed without meeting
25 (1) If --
(a) a document containing a statement to the effect that an act,
matter or thing has been done or a resolution has been passed
is sent or given to all directors of a corporation;
(b) the document is assented to by a majority of the directors who
30 signify a response; and
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Schedule 1 Provisions about the constitution and proceedings of boards
cl. 9
(c) that majority comprises not less than 3 directors,
that act, matter, thing or resolution is to be taken as having been done
at or passed by a meeting of the board of the corporation.
(2) For the purposes of subclause (1) --
5 (a) the meeting is to be taken as having been held --
(i) if the directors assented to the document on the same
day, on the day on which the document was assented
to and at the time at which the document was last
assented to by a director; or
10 (ii) if the directors assented to the document on different
days, on the day on which, and at the time at which,
the document was last assented to by a director;
(b) 2 or more separate documents in identical terms each of
which is assented to by one or more directors are to be taken
15 to constitute one document; and
(c) a director may signify assent to a document --
(i) by signing the document; or
(ii) by notifying the corporation of the director's assent in
person or by post, facsimile transmission, telephone,
20 email or other method of written, electronic, audio or
audiovisual communication.
(3) Where a director signifies assent to a document otherwise than by
signing the document, the director must by way of confirmation sign
the document at the next meeting of the board attended by that
25 director, but failure to do so does not invalidate the act, matter, thing
or resolution to which the document relates.
(4) Where a document is assented to in accordance with subclause (1), the
document is to be taken as a minute of a meeting of the board.
9. Minutes and records
30 A board is to ensure that an accurate record is kept and preserved
of --
(a) the proceedings at each meeting of the board; and
(b) each resolution passed under clause 8.
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Electricity Corporations Bill 2005
Provisions about the constitution and proceedings of boards Schedule 1
cl. 10
10. Leave of absence
A board may, on such terms and conditions as it thinks fit, grant to a
director leave of absence from a meeting, including the meeting at
which it is intended to grant the leave.
5 11. Board to determine own procedures
Subject to this Act, a board may determine its own procedures.
page 125
Electricity Corporations Bill 2005
Schedule 2 Provisions about the duties of directors and related provisions
Division 1 Preliminary
cl. 1
Schedule 2 -- Provisions about the duties of directors
and related provisions
[s. 27]
Division 1 -- Preliminary
5 1. Attempts to commit offences
A person who attempts (within the meaning in The Criminal Code
section 4) to commit an offence against a provision of this Schedule is
guilty of that offence.
Division 2 -- Certain duties stated
10 2. Duty to act honestly
(1) A director of a corporation must at all times act honestly in the
performance of the functions of his or her office, whether within or
outside the State.
(2) A person who contravenes subclause (1) --
15 (a) with intent to deceive or defraud --
(i) the corporation concerned; or
(ii) creditors of that corporation or of any other person;
or
(b) for any other fraudulent purpose,
20 commits a crime and is liable to a fine of $20 000 or imprisonment for
5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
(3) If subclause (2) does not apply, a person who contravenes
25 subclause (1) commits an offence and is liable to a fine of $5 000.
3. Duty to exercise reasonable care and diligence
A director of a corporation must at all times exercise the degree of
care and diligence in the performance of his or her functions, whether
within or outside the State, that a reasonable person in that position
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Provisions about the duties of directors and related provisions Schedule 2
Certain duties stated Division 2
cl. 4
would reasonably be expected to exercise in the corporation's
circumstances.
Penalty: $5 000.
4. Duty not to make improper use of information
5 (1) A director of a corporation or a former director must not, whether
within or outside the State, make improper use of information
acquired by virtue of his or her position as such --
(a) to gain, directly or indirectly, an advantage --
(i) for himself or herself; or
10 (ii) for any other person;
or
(b) to cause detriment to the corporation.
(2) A person who contravenes subclause (1) commits a crime and is liable
to a fine of $20 000 or imprisonment for 5 years, or both.
15 Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
5. Duty not to make improper use of position
(1) A director of a corporation must not, whether within or outside the
State, make improper use of his or her position as such --
20 (a) to gain, directly or indirectly, an advantage --
(i) for himself or herself; or
(ii) for any other person;
or
(b) to cause detriment to the corporation.
25 (2) A person who contravenes subclause (1) commits a crime and is liable
to a fine of $20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
page 127
Electricity Corporations Bill 2005
Schedule 2 Provisions about the duties of directors and related provisions
Division 3 Recovery from director
cl. 6
6. Fiduciary duty
(1) A director of a corporation has --
(a) the same fiduciary relationship with the corporation; and
(b) the same duties to the corporation to act with loyalty and in
5 good faith,
as a director of a company incorporated under the Corporations Act
has with and to the company.
(2) The duties referred to in subclause (1) are enforceable by the Minister
and not otherwise.
10 (3) The provisions of this clause are in addition to the other provisions of
this Schedule.
Division 3 -- Recovery from director
7. Payment of compensation may be ordered
(1) If --
15 (a) a person is convicted of an offence for a contravention of
clause 2, 3, 4 or 5; and
(b) the court is satisfied that the corporation concerned has
suffered loss or damage as a result of the act or omission that
constituted the offence,
20 the court by which the person is convicted may, in addition to
imposing a penalty, order the convicted person to pay compensation
to the corporation of such amount as the court specifies.
(2) Any such order may be enforced as if it were a judgment of the court.
8. Civil proceedings for recovery from director
25 If a person contravenes clause 2, 3, 4 or 5, the corporation concerned
may, whether or not the person has been convicted of an offence in
respect of that contravention, recover from the person as a debt due to
the corporation by action in any court of competent jurisdiction --
(a) if that person or any other person made a profit as a result of
30 the contravention, an amount equal to that profit; and
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Electricity Corporations Bill 2005
Provisions about the duties of directors and related provisions Schedule 2
Relief from liability Division 4
cl. 9
(b) if the corporation has suffered loss or damage as a result of
the contravention, an amount equal to that loss or damage.
Division 4 -- Relief from liability
9. Court may grant relief
5 Without limiting section 120, for the purposes of clause 6, 7 or 8 if it
appears to the court that a person --
(a) is, or may be, liable under that clause;
(b) has acted honestly; and
(c) ought fairly to be excused having regard to all the
10 circumstances of the case, including those connected with the
person's appointment,
the court may relieve the person either wholly or partly from liability
on such terms as the court thinks fit.
10. Application for relief
15 (1) Without limiting section 120, where a person has reason to believe
that any claim will or might be made against him or her under
clause 6, 7 or 8 the person may apply to the Supreme Court for relief.
(2) On an application under subclause (1) the Supreme Court has the
same power to relieve the person as it would have had under clause 9
20 if it had been a court exercising jurisdiction under clause 6, 7 or 8.
11. Case may be withdrawn from jury
Where a case to which clause 9 applies is being tried by judge with a
jury, the judge after hearing the evidence may, if he or she is satisfied
that the person ought under that clause to be relieved either wholly or
25 partly from liability sought to be enforced against the person --
(a) withdraw the case in whole or in part from the jury; and
(b) direct judgment to be entered for the person on such terms as
to costs or otherwise as the judge thinks proper.
page 129
Electricity Corporations Bill 2005
Schedule 2 Provisions about the duties of directors and related provisions
Division 5 Personal interests of directors, disclosure and voting
cl. 12
Division 5 -- Personal interests of directors, disclosure and voting
12. Disclosure
(1) In subclause (2) --
"notifiable interest" means an interest in the matter that will, under
5 clause 13(1), disqualify the director from voting on the matter at
a meeting of the board unless allowed to do so by a resolution
under clause 13(3) or a declaration under clause 13(6).
(2) A director of a corporation who has a notifiable interest in a matter
involving the corporation must, as soon as possible after the relevant
10 facts have come to the director's knowledge, disclose the nature of the
interest at a meeting of the board of the corporation.
Penalty: $5 000.
(3) A disclosure under subclause (2) is to be recorded in the minutes of
the meeting.
15 13. Voting by interested directors
(1) A director of a corporation who has a material personal interest in a
matter that is being considered by the board of the corporation --
(a) must not vote whether at a meeting or otherwise --
(i) on the matter; or
20 (ii) in relation to a proposed resolution under
subclause (3) in relation to the matter, whether in
relation to that or a different director;
and
(b) must not be present while --
25 (i) the matter; or
(ii) a proposed resolution of the kind referred to in
paragraph (a)(ii),
is being considered at a meeting.
(2) For the purpose of subclause (1), a director of a corporation does not
30 have an interest in a matter relating to an existing or proposed contract
of insurance merely because the contract insures, or would insure, the
director against a liability incurred by the director in his or her
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Electricity Corporations Bill 2005
Provisions about the duties of directors and related provisions Schedule 2
Other prohibited conduct Division 6
cl. 14
capacity as a director of the corporation or of a subsidiary, but this
subclause does not apply if the corporation is the insurer.
(3) Subclause (1) does not apply if the board has at any time passed a
resolution that --
5 (a) specifies the director, the interest and the matter; and
(b) states that the directors voting for the resolution are satisfied
that the interest should not disqualify the director from
considering or voting on the matter.
(4) Despite Schedule 1 clause 6(5), if a director is disqualified under
10 subclause (1) in relation to a matter, a quorum is present during the
consideration of that matter if at least 2 directors are present who are
entitled to vote on any motion that may be moved at the meeting in
relation to that matter.
(5) The Minister may deal with a matter in so far as a board cannot deal
15 with it because of subclause (4).
(6) The Minister may by writing declare that subclauses (1) and (4) do
not apply in relation to a specified matter either generally or in voting
on particular resolutions.
(7) The Minister must, within 14 days after a declaration under
20 subclause (6) is made, cause a copy of the declaration to be laid
before each House of Parliament or dealt with in accordance with
section 134.
Division 6 -- Other prohibited conduct
14. Prohibition on loans to directors and related persons
25 (1) In subclause (2)(e) --
"relative" means --
(a) a parent or remoter lineal ancestor;
(b) son, daughter or remoter issue; or
(c) a brother or sister.
30 (2) A corporation must not, whether directly or indirectly --
(a) make a loan; or
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Schedule 2 Provisions about the duties of directors and related provisions
Division 6 Other prohibited conduct
cl. 15
(b) give a guarantee or provide security in connection with a loan
made,
to --
(c) a director;
5 (d) a spouse or de facto partner of a director; or
(e) a relative of a director or of a spouse or de facto partner of a
director.
(3) A director of a corporation who is knowingly concerned in a
contravention of subclause (2) by the corporation (whether or not in
10 relation to the director) --
(a) with intent to deceive or defraud --
(i) the corporation concerned; or
(ii) creditors of the corporation concerned or of any other
person;
15 or
(b) for any other fraudulent purpose,
commits a crime and is liable to a fine of $20 000 or imprisonment for
5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
20 3 years, or both.
(4) If subclause (3)(a) or (b) does not apply the director commits an
offence and is liable to a fine of $5 000.
15. Directors and auditors not to be indemnified for certain matters
(1) A corporation or a subsidiary must not --
25 (a) indemnify a person who is or has been a director or auditor of
the corporation against a liability incurred by the person as a
director or auditor; or
(b) exempt such a person from such a liability.
(2) Any agreement or arrangement is void so far as it provides for a
30 corporation or a subsidiary to do anything that subclause (1) prohibits.
(3) Subclause (1) does not prevent a person from being indemnified
against a civil liability to a person, other than a corporation or a
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Provisions about the duties of directors and related provisions Schedule 2
Other prohibited conduct Division 6
cl. 16
subsidiary, unless the liability arises out of conduct involving a lack
of good faith.
(4) Subclause (1) does not prevent a person from being indemnified
against a liability for costs and expenses incurred by the person --
5 (a) in defending proceedings, whether civil or criminal, in which
judgment is given in favour of the person or in which the
person is acquitted; or
(b) in obtaining relief under clause 9 or 10.
(5) A corporation or a subsidiary must not pay, or agree to pay, a
10 premium, in respect of a contract insuring a person who is or has been
a director or auditor of the corporation against a liability --
(a) incurred by the person as such a director or auditor; and
(b) arising out of conduct involving --
(i) a wilful breach of duty in relation to the corporation;
15 or
(ii) without limiting subparagraph (i), a contravention of
clause 4 or 5.
(6) In subclause (5) --
"pay" includes pay indirectly through one or more interposed entities.
20 (7) If subclause (5) is contravened, the contract is void so far as it insured
the person against such a liability.
(8) Subclauses (5) and (7) do not apply to a liability for costs and
expenses incurred by a person in defending proceedings, whether civil
or criminal and whatever their outcome.
25 16. False or misleading information
(1) A director of a corporation must not make available or furnish
information, or authorise or permit the making available or furnishing
of information, to --
(a) the Treasurer or the Minister; or
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Schedule 2 Provisions about the duties of directors and related provisions
Division 6 Other prohibited conduct
cl. 16
(b) a director, auditor, debenture holder or trustee for debenture
holders of the corporation,
being information, whether in documentary or any other form, that
relates to the affairs of the corporation and that, to the knowledge of
5 the director --
(c) is false or misleading in a material particular; or
(d) has omitted from it a matter or thing the omission of which
renders the information misleading in a material respect.
Penalty: $10 000 or imprisonment for 2 years, or both.
10 (2) A director of a corporation must not make available or furnish
information, or authorise or permit the making available or furnishing
of information, to --
(a) the Treasurer or the Minister; or
(b) a director, auditor, debenture holder or trustee for debenture
15 holders of the corporation,
being information whether in documentary or any other form, relating
to the affairs of the corporation that --
(c) is false or misleading in a material particular; or
(d) has omitted from it a matter or thing the omission of which
20 renders the information misleading in a material respect,
without having taken reasonable steps to ensure that the
information --
(e) was not false or misleading in a material particular; and
(f) did not have omitted from it a matter or thing the omission of
25 which rendered the information misleading in a material
respect.
Penalty: $5 000 or imprisonment for one year, or both.
(3) The references in subclauses (1) and (2) to a director of a
corporation --
30 (a) making available or furnishing; or
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Provisions about the duties of directors and related provisions Schedule 2
Other prohibited conduct Division 6
cl. 16
(b) authorising or permitting the making available or furnishing
of,
information relating to the affairs of the corporation include
references to a director --
5 (c) making available or furnishing; or
(d) authorising or permitting the making available or furnishing
of,
information as to the state of knowledge of that director with respect
to the affairs of the corporation.
10 (4) Where information is made available or furnished to a person referred
to in subclauses (1)(a) or (b) or (2)(a) or (b) in response to a question
asked by that person, the question and information are to be
considered together in determining whether the information was false
or misleading.
page 135
Electricity Corporations Bill 2005
Schedule 3 Provisions to be included in constitution of subsidiary
cl. 1
Schedule 3 -- Provisions to be included in constitution
of subsidiary
[s. 65]
1. Disposal of shares
5 (1) A corporation is not to sell or otherwise dispose of shares in the
subsidiary other than as approved by the Minister.
(2) The Minister is empowered to execute a transfer of any shares in the
subsidiary held by the corporation.
2. Directors
10 (1) The directors of the subsidiary are to be appointed by the corporation
concerned, but no such director may be appointed except with the
prior written approval of the Minister.
(2) All decisions relating to the operation of the subsidiary are to be made
by or under the authority of the board of the subsidiary in accordance
15 with the statement of corporate intent of the corporation concerned
and the subsidiary.
(3) The board of the subsidiary is accountable to the Minister in the
manner set out in Part 5 and in the constitution of the subsidiary.
3. Further shares
20 Shares may not be issued or transferred except with the prior written
approval of the Minister.
4. Subsidiaries of subsidiary
(1) The subsidiary may not --
(a) form;
25 (b) participate in the formation of; or
(c) acquire,
any subsidiary without the prior written approval of the Minister
given with the Treasurer's concurrence.
(2) The subsidiary must ensure that the constitution of each of its
30 subsidiaries at all times complies with this Act.
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Provisions to be included in constitution of subsidiary Schedule 3
cl. 4
(3) The subsidiary must, to the maximum extent practicable, ensure that
each of its subsidiaries complies with its constitution and with the
requirements of this Act.
page 137
Electricity Corporations Bill 2005
Schedule 4 Financial administration and audit
Division 1 Preliminary
cl. 1
Schedule 4 -- Financial administration and audit
[s. 133(1)]
Division 1 -- Preliminary
1. Meaning of terms used in this Schedule
5 (1) In this Schedule, unless the contrary intention appears --
"financial year" has the meaning given to that term in clause 23(1);
"regulations" means regulations made under the Corporations Act.
(2) In this Schedule, unless the contrary intention appears, terms
(including the terms "accounting standard", "company" and
10 "financial records") have the meanings given to them in the
Corporations Act Part 1.2.
Division 2 -- Financial records
2. Obligation to keep financial records
(cf. Corporations Act s. 286)
15 (1) A corporation must keep written financial records that --
(a) correctly record and explain its transactions and financial
position and performance; and
(b) would enable true and fair financial statements to be prepared
and audited.
20 (2) The obligation to keep financial records of transactions extends to
transactions undertaken as trustee.
(3) The financial records must be retained for 7 years after the transaction
covered by the records is completed.
3. Physical format
25 (cf. Corporations Act s. 288)
If financial records are kept in electronic form, they must be
convertible into hard copy. Hard copy must be made available within
a reasonable time to a person who is entitled to inspect the records.
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Electricity Corporations Bill 2005
Financial administration and audit Schedule 4
Financial records Division 2
cl. 4
4. Place where records are kept
(cf. Corporations Act s. 289)
(1) A corporation may decide where to keep the financial records.
(2) If financial records about particular matters are kept outside Australia,
5 sufficient written information about those matters must be kept in
Australia to enable true and fair financial statements to be prepared.
(3) A corporation must give the Treasurer written notice of the place
where the information is kept.
(4) The Minister may direct a corporation to produce specified financial
10 records that are kept outside Australia.
(5) The direction must --
(a) be in writing;
(b) specify a place in Australia where the records are to be
produced (the place must be reasonable in the circumstances);
15 and
(c) specify a day (at least 14 days after the direction is given) by
which the records are to be produced.
5. Director access
(cf. Corporations Act s. 290)
20 (1) A director of a corporation has a right of access to the financial
records of the corporation at all reasonable times.
(2) On application by a director, the Supreme Court may authorise a
person to inspect the financial records on the director's behalf.
(3) A person authorised to inspect records may make copies of the
25 records unless the Supreme Court orders otherwise.
(4) The Supreme Court may make any other orders it considers
appropriate, including either or both of the following --
(a) an order limiting the use that a person who inspects the
records may make of information obtained during the
30 inspection;
(b) an order limiting the right of a person who inspects the
records to make copies in accordance with subclause (3).
page 139
Electricity Corporations Bill 2005
Schedule 4 Financial administration and audit
Division 3 Financial reporting
cl. 6
Division 3 -- Financial reporting
Subdivision 1 -- Annual financial reports and directors' reports
6. Preparation of annual financial reports and directors' reports
(cf. Corporations Act s. 292)
5 A financial report and a directors' report must be prepared for each
financial year by a corporation before 30 September.
7. Contents of annual financial report
(cf. Corporations Act s. 295)
(1) The financial report for a financial year consists of --
10 (a) the financial statements for the year;
(b) the notes to the financial statements; and
(c) the directors' declaration about the statements and notes.
(2) The financial statements for the year are --
(a) a profit and loss statement for the year;
15 (b) a balance sheet as at the end of the year;
(c) a statement of cash flows for the year; and
(d) if required by the accounting standards -- a consolidated
profit and loss statement, balance sheet and statement of cash
flows.
20 (3) The notes to the financial statements are --
(a) disclosures required by the regulations;
(b) notes required by the accounting standards; and
(c) any other information necessary to give a true and fair view.
(4) The directors' declaration is a declaration by the directors --
25 (a) that the financial statements, and the notes referred to in
subclause (3)(b), comply with the accounting standards;
(b) that the financial statements and notes give a true and fair
view;
(c) whether, in the directors' opinion, there are reasonable
30 grounds to believe that the corporation, will be able to pay its
debts as and when they become due and payable; and
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Financial administration and audit Schedule 4
Financial reporting Division 3
cl. 8
(d) whether, in the directors' opinion, the financial statements
and notes are in accordance with this Schedule, including --
(i) clause 8 (compliance with accounting standards and
regulations); and
5 (ii) clause 9 (true and fair view).
(5) The declaration must --
(a) be made in accordance with a resolution of the directors;
(b) specify the date on which the declaration is made; and
(c) be signed by at least 2 directors.
10 8. Compliance with accounting standards and regulations
(cf. Corporations Act s. 296)
(1) The financial report for a financial year must comply with the
accounting standards.
(2) The financial report must comply with any further requirements in the
15 regulations.
9. True and fair view
(cf. Corporations Act s. 297)
(1) The financial statements and notes in respect of a corporation for a
financial year must give a true and fair view of --
20 (a) the financial position and performance of the corporation; and
(b) if consolidated financial statements are required under
clause 7(2)(d) -- the financial position and performance of
the consolidated entity of which the corporation is a part.
(2) This clause does not affect the obligation under clause 8 for a
25 financial report to comply with accounting standards.
10. Annual directors' report
(cf. Corporations Act s. 298)
(1) A corporation must prepare a directors' report for each financial year.
(2) The report must include --
30 (a) the general information required by clause 11; and
(b) the specific information required by clause 12.
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Schedule 4 Financial administration and audit
Division 3 Financial reporting
cl. 11
(3) The report must --
(a) be made in accordance with a resolution of the directors;
(b) specify the date on which the report is made; and
(c) be signed by at least 2 directors.
5 11. Annual directors' report -- general information
(cf. Corporations Act s. 299)
(1) The directors' report in respect of a corporation for a financial year
must --
(a) contain a review of operations during the year of the
10 corporation and the results of those operations;
(b) give details of any significant changes in the corporation's
state of affairs during the year;
(c) state the corporation's principal activities during the year and
any significant changes in the nature of those activities during
15 the year;
(d) give details of any matter or circumstance that has arisen
since the end of the year that has significantly affected, or
may significantly affect --
(i) the corporation's operations in future financial years;
20 (ii) the results of those operations in future financial
years; or
(iii) the corporation's state of affairs in future financial
years;
(e) refer to likely developments in the corporation's operations in
25 future financial years and the expected results of those
operations; and
(f) if the corporation's operations are subject to any particular
and significant environmental regulation under a law of the
State or of the Commonwealth or of another State or a
30 Territory -- give details of the corporation's performance in
relation to environmental regulation.
(2) If consolidated financial statements are required under clause 7(2)(d),
the report must be on the consolidated entity of which the corporation
concerned is part.
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Financial administration and audit Schedule 4
Financial reporting Division 3
cl. 12
(3) The report in respect of a corporation may omit material that would
otherwise be included under subclause (1)(e) if it is likely to result in
unreasonable prejudice to --
(a) the corporation; or
5 (b) if consolidated financial statements are required under
clause 7(2)(d) -- the consolidated entity or any entity
(including the corporation concerned) that is part of the
consolidated entity.
(4) If material is omitted from the report, the report must say so.
10 12. Annual directors' report -- specific information
(cf. Corporations Act s. 300)
(1) The directors' report for a financial year must include details of --
(a) dividends or distributions paid during the year;
(b) dividends or distributions recommended or declared for
15 payment, but not paid, during the year; and
(c) the name of each person who has been a director of the
corporation at any time during or since the end of the year
and the period for which they were a director.
(2) If --
20 (a) during or since the financial year, the corporation concerned
has indemnified against a liability a person who is or has been
a director or auditor of the corporation or of a related body
corporate; and
(b) but for Schedule 2 clause 15(3) or (4), subclause (1) of that
25 clause would have prohibited the corporation from
indemnifying the person against that liability,
the report must set out --
(c) the person's name;
(d) the nature of the liability; and
30 (e) how much the corporation paid, and what else the corporation
did, by way of indemnifying the person against the liability.
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Schedule 4 Financial administration and audit
Division 3 Financial reporting
cl. 12
(3) If --
(a) during or since the financial year, the corporation concerned
has made a relevant agreement (as defined in section 9 of the
Corporations Act) for indemnifying against a liability a
5 person who is or has been a director or auditor of the
corporation or of a related body corporate; and
(b) but for Schedule 2 clause 15(3) or (4), subclause (1) of that
clause would prohibit the corporation from indemnifying the
person against that liability,
10 the report must set out particulars of the relevant agreement,
including --
(c) the person's name;
(d) the nature of the liability; and
(e) how much the relevant agreement provides for the
15 corporation to pay, and what else it provides for the
corporation to do, by way of indemnifying the person against
the liability.
(4) If --
(a) during or since the financial year, the corporation concerned
20 has paid, or agreed to pay, a premium in respect of a contract
insuring against a liability a person who is or has been a
director or auditor of the corporation or of a related body
corporate; and
(b) but for Schedule 2 clause 15(8), subclause (5) of that clause
25 would have prohibited the corporation from paying, or
agreeing to pay, the premium,
the report must --
(c) name the person and state that the corporation has paid, or
agreed to pay, a premium in respect of a contract insuring the
30 person against a liability; and
(d) set out, except so far as prohibited by the contract itself, the
nature of the liability and the amount of the premium.
(5) The report must also include details of --
(a) each director's qualifications, experience and special
35 responsibilities;
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Electricity Corporations Bill 2005
Financial administration and audit Schedule 4
Financial reporting Division 3
cl. 13
(b) the number of meetings of the board held during the year and
each director's attendance at those meetings; and
(c) the number of meetings of each board committee held during
the year and each director's attendance at those meetings.
5 13. Annual directors' report -- other specific information
(cf. Corporations Act s. 300A)
The directors' report in respect of a corporation for a financial year
must also include --
(a) discussion of board policy for determining the nature and
10 amount of emoluments of board members and senior
executives of the corporation;
(b) discussion of the relationship between such policy and the
corporation's performance; and
(c) details of the nature and amount of each element of the
15 emolument of each director and each of the 5 named officers
of the corporation receiving the highest emolument.
14. Audit of annual financial report
(cf. Corporations Act s. 301)
A corporation must have the financial report for a financial year
20 audited by the Auditor General in accordance with Subdivision 2 and
clauses 34 and 35 and obtain an auditor's report.
Subdivision 2 -- Audit and auditor's report
15. Audit opinion
(cf. Corporations Act s. 307)
25 The Auditor General must form an opinion about --
(a) whether the financial report is in accordance with this
Schedule, including --
(i) clause 8 (compliance with accounting standards and
regulations); and
30 (ii) clause 9 (true and fair view);
(b) whether he or she has been given all information, explanation
and assistance necessary for the conduct of the audit;
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Schedule 4 Financial administration and audit
Division 3 Financial reporting
cl. 16
(c) whether the corporation concerned has kept financial records
sufficient to enable a financial report to be prepared and
audited; and
(d) whether the corporation concerned has kept other records and
5 registers as required by this Schedule.
16. Auditor General's report on annual financial report
(cf. Corporations Act s. 308)
(1) The Auditor General must report to the Minister on whether he or she
is of the opinion that the financial report is in accordance with this
10 Schedule, including --
(a) clause 8 (compliance with accounting standards and
regulations); and
(b) clause 9 (true and fair view).
(2) If not of that opinion, the Auditor General's report must say why.
15 (3) If the Auditor General is of the opinion that the financial report does
not comply with an accounting standard, his or her report must, to the
extent it is practicable to do so, quantify the effect that
non-compliance has on the financial report.
(4) If it is not practicable to quantify the effect fully, the report must say
20 why.
(5) The Auditor General's report must describe --
(a) any defect or irregularity in the financial report; and
(b) any deficiency, failure or shortcoming in respect of the
matters referred to in clause 15.
25 (6) The report must specify the date on which it is made.
(7) The Auditor General must give a copy of the report to the directors of
the corporation concerned as soon as practicable after it has been
given to the Minister.
page 146
Electricity Corporations Bill 2005
Financial administration and audit Schedule 4
Financial reporting Division 3
cl. 17
17. Auditor General's power to obtain information
(cf. Corporations Act s. 310)
The Auditor General --
(a) has a right of access at all reasonable times to the books of a
5 corporation; and
(b) may require any officer of the corporation to give the Auditor
General information, explanations or other assistance for the
purposes of the audit or review.
18. Assisting Auditor General
10 (cf. Corporations Act s. 312)
An officer of a corporation must --
(a) allow the Auditor General access to the books of the
corporation; and
(b) give the Auditor General any information, explanation or
15 assistance required under clause 17.
Subdivision 3 -- Special provisions about consolidated
financial statements
19. Directors and officers of controlled entity to give information
(cf. Corporations Act s. 323)
20 If a corporation has to prepare consolidated financial statements, a
director or officer of a controlled entity must give the corporation all
information requested that is necessary to prepare the consolidated
financial statements and the notes to those statements.
20. Auditor General's power to obtain information from controlled
25 entity
(cf. Corporations Act s. 323A)
(1) Where the financial report includes consolidated financial statements,
the Auditor General --
(a) has a right of access at all reasonable times to the books of
30 any controlled entity; and
(b) may require any officer of the entity to give the Auditor
General information, explanations or other assistance for the
purposes of the audit or review.
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Schedule 4 Financial administration and audit
Division 3 Financial reporting
cl. 21
(2) The information, explanations or other assistance required under
subclause (1)(b) is to be given at the expense of the corporation
concerned.
21. Controlled entity to assist the Auditor General
5 (cf. Corporations Act s. 323B)
If a corporation has to prepare a financial report that includes
consolidated financial statements, an officer or auditor of a controlled
entity must --
(a) allow the Auditor General access to the controlled entity's
10 books; and
(b) give the Auditor General any information, explanation or
assistance required under clause 20.
22. Application of subdivision to entity that has ceased to be
controlled
15 (cf. Corporations Act s. 323C)
Clauses 19, 20 and 21 apply to the preparation or audit of a financial
report that covers a controlled entity even if the entity is no longer
controlled by the corporation concerned when its financial report is
being prepared or audited.
20 Subdivision 4 -- Financial years of the corporation and the
entities it controls
23. Financial years
(cf. Corporations Act s. 323D)
(1) The financial year of a corporation is the 12 month period ending on
25 30 June.
(2) Where a corporation has to prepare consolidated financial statements,
it must do whatever is necessary to ensure that the financial years of
the consolidated entities are synchronised with its own financial years.
(3) It must achieve this synchronisation by the end of 12 months after the
30 situation that calls for consolidation arises.
page 148
Electricity Corporations Bill 2005
Financial administration and audit Schedule 4
Accounting standards Division 4
cl. 24
Division 4 -- Accounting standards
24. Accounting standards
(cf. Corporations Act s. 334)
(1) An accounting standard applies to --
5 (a) periods ending after the commencement of the standard; or
(b) periods ending, or starting, on or after a later date specified in
the standard.
(2) A corporation may elect to apply the accounting standard to an earlier
period unless the standard says otherwise.
10 (3) The election must be made in writing by the directors of the
corporation.
25. Equity accounting
(cf. Corporations Act s. 335)
This Schedule (and, in particular, the provisions on consolidation of
15 financial statements) does not prevent accounting standards from
incorporating equity accounting principles.
26. Interpretation of accounting standards
(cf. Corporations Act s. 337)
In interpreting an accounting standard --
20 (a) unless the contrary intention appears, expressions used in the
standard have the same meaning as they have in Chapter 2M
of the Corporations Act; and
(b) the provisions of Part 1.2 of the Corporations Act apply as if
the standard's provisions were provisions of that Chapter.
25 27. Evidence of text of accounting standard
(cf. Corporations Act s. 339)
(1) This clause applies to a document that purports to be published by or
on behalf of the AASB or ASIC and to set out the text of --
(a) a specified standard as in force at a specified time under
30 section 334 of the Corporations Act; or
(b) a specified provision of a standard of that kind.
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Electricity Corporations Bill 2005
Schedule 4 Financial administration and audit
Division 5 Exemptions and modifications
cl. 28
(2) It also applies to a copy of a document of that kind.
(3) In the absence of evidence to the contrary, a document to which this
clause applies is proof in proceedings under this Act that --
(a) the specified standard was in force at that time under that
5 section; and
(b) the text set out in the document is the text of the standard
referred to in subclause (1)(a) or the provision referred to in
subclause (1)(b).
Division 5 -- Exemptions and modifications
10 28. Treasurer's power to make specific exemption orders
(cf. Corporations Act s. 340)
(1) On an application made in accordance with subclause (3) in relation
to a corporation, the Treasurer may make an order in writing relieving
any of the following from all or specified requirements of Divisions 2
15 and 3 --
(a) the directors;
(b) the corporation;
(c) the Auditor General.
(2) The order may --
20 (a) be expressed to be subject to conditions; and
(b) be indefinite or limited to a specified period.
(3) The application must be --
(a) authorised by a resolution of the directors;
(b) in writing and signed by a director; and
25 (c) lodged with the Treasurer.
(4) The Treasurer must give the corporation concerned written notice of
the making, revocation or suspension of the order.
(5) If the Treasurer makes an order under subclause (1) the Treasurer is to
cause the text of the order to be laid before each House of Parliament
30 within 14 days after the order is made.
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Electricity Corporations Bill 2005
Financial administration and audit Schedule 4
Exemptions and modifications Division 5
cl. 29
(6) If at the commencement of the period referred to in subclause (5) a
House of Parliament is not sitting and the Treasurer is of the opinion
that that House will not sit during that period, the Treasurer is to
transmit a copy of the order to the Clerk of that House.
5 (7) A copy of an order transmitted to the Clerk of a House is to be taken
to have been laid before that House.
(8) The laying of a copy of an order that is taken to have occurred under
subclause (7) is to be recorded in the Minutes, or Votes and
Proceedings, of the House on the first sitting day of the House after
10 the receipt of the copy by the Clerk.
29. Criteria for specific exemption orders and class orders
(cf. Corporations Act s. 342)
To make an order under clause 28, the Treasurer must be satisfied that
complying with the relevant requirements of Divisions 2 and 3 would --
15 (a) make the financial report or other reports misleading;
(b) be inappropriate in the circumstances; or
(c) impose unreasonable burdens.
30. Extension of time
(1) Where any provision of this Schedule requires any act or thing to be
20 observed or performed by a certain date or within a specified time by
a person, other than the Auditor General, the Minister may on
application by that person extend the date or time for observance or
performance of such act or thing to such date or time as the Minister
thinks appropriate.
25 (2) Where the Minister grants an extension of time under subclause (1),
the provisions of clause 28(5) apply, with all necessary changes, to the
memorandum evidencing the extension as if it were an order for the
purposes of that subclause.
page 151
Electricity Corporations Bill 2005
Schedule 4 Financial administration and audit
Division 6 Sanctions for contraventions of this Schedule
cl. 31
Division 6 -- Sanctions for contraventions of this Schedule
31. Contravention of Divisions 2 and 3
(cf. Corporations Act s. 344)
(1) A director of a corporation must take all reasonable steps to comply
5 with, or to secure compliance with, Divisions 2 and 3.
(2) A person who contravenes subclause (1) with intent to deceive or
defraud the Minister or the Treasurer or creditors of the corporation, is
guilty of a crime and is liable to a fine of $20 000 or imprisonment for
5 years, or both.
10 Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
(3) If subclause (2) does not apply a person who contravenes
subclause (1) is liable to a fine of $5 000.
(4) Subclause (1) does not apply to clause 17, 18, 20 or 21.
15 Division 7 -- Miscellaneous
32. Deadline for reporting to the Minister
(cf. Corporations Act s. 315)
(1) In subclause (2) --
"prescribed day" means the tenth working day after receipt by the
20 directors under clause 16 of the Auditor General's report.
(2) A corporation must, as soon as practicable but not later than the close
of business on the prescribed day in each year, send to the Minister a
copy of the annual report required by section 107.
33. Annual financial reporting to the Minister
25 (cf. Corporations Act s. 314)
The annual report of a corporation under section 107 is to contain the
following documents --
(a) the financial report for the year;
(b) the directors' report for the year;
30 (c) the Auditor General's report on the financial report;
(d) a copy of any order of the Treasurer under clause 28.
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Financial administration and audit Schedule 4
Miscellaneous Division 7
cl. 34
34. Audit
(1) If the Auditor General cannot complete the audit of a corporation by
30 September in any year he or she is to submit an interim report to
the Minister setting out the reasons for his or her inability to complete
5 the audit by that date, and the Minister is to cause copies of the report
to be laid before both Houses of Parliament within 7 sitting days of
receiving that report.
(2) The Financial Administration and Audit Act 1985 section 92 applies
to the audit of the corporation.
10 35. Powers and duties of the Auditor General
(1) If the Auditor General in the course of the performance of duties as
auditor of a corporation and its subsidiaries, is satisfied that --
(a) there has been a contravention of any provision of this
Schedule; and
15 (b) the circumstances are such that in the Auditor General's
opinion the matter has not been or will not be adequately
dealt with by comment in the Auditor General's report on the
financial statements or by bringing the matter to the notice of
the board of the corporation,
20 the Auditor General is to forthwith report the matter to the Minister in
writing.
(2) The Financial Administration and Audit Act 1985 sections 78 to 80,
82 to 91 and 95 apply to the corporation as if it were a statutory
authority named in Schedule 1 to that Act.
page 153
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 1 Constitution Acts Amendment Act 1899
cl. 1
Schedule 5 -- Amendments to other Acts
[s. 139]
Division 1 -- Constitution Acts Amendment Act 1899
1. The Act amended
5 The amendments in this Division are to the Constitution Acts
Amendment Act 1899*.
[* Reprint 13 as at 18 March 2005.]
2. Schedule V amended
Schedule V Part 3 is amended as follows:
10 (a) by deleting the item "The Western Power Corporation
established by the Electricity Corporation Act 1994.";
(b) by inserting in the appropriate alphabetical positions --
"
The Electricity Generation Corporation established
15 by section 4(1)(a) of the Electricity
Corporations Act 2005.
The Electricity Networks Corporation established
by section 4(1)(b) of the Electricity
Corporations Act 2005.
20 The Electricity Retail Corporation established by
section 4(1)(c) of the Electricity Corporations
Act 2005.
The Regional Power Corporation established by
section 4(1)(d) of the Electricity Corporations
25 Act 2005.
".
page 154
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Economic Regulation Authority Act 2003 Division 2
cl. 3
Division 2 -- Economic Regulation Authority Act 2003
3. The Act amended
The amendments in this Division are to the Economic Regulation
Authority Act 2003*.
5 [* Act No. 67 of 2003.]
4. Section 20 amended
Section 20(5) is amended in the definition of "relevant entity" by
deleting paragraph (c) and inserting instead --
"
10 (c) a body established by section 4(1) of the
Electricity Corporations Act 2005,
namely --
(i) the Electricity Generation Corporation;
(ii) the Electricity Networks Corporation;
15 (iii) the Electricity Retail Corporation; and
(iv) the Regional Power Corporation.
".
Division 3 -- Electricity Act 1945
5. The Act amended
20 The amendments in this Division are to the Electricity Act 1945*.
[* Reprint 5 as at 6 June 2003.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 138.]
6. Section 5 amended
25 Section 5(1) is amended as follows:
(a) in the definition of "supply authority" by deleting ", but does
not include the Western Power Corporation";
(b) by deleting the definition of "Western Power Corporation".
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cl. 7
Division 4 -- Electricity Corporation Act 1994
7. The Act amended
The amendments in this Division are to the Electricity Corporation
Act 1994*.
5 [* Reprint 2 as at 3 January 2003.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 139.]
8. Long title amended
The long title is repealed and the following long title is inserted
10 instead --
"
An Act to make provision for the availability of access to
electricity transmission and distribution systems, and for related
matters.
15 ".
9. Section 1 amended
Section 1 is amended by deleting "Corporation" and inserting
instead --
" Transmission and Distribution Systems (Access) ".
20 10. Sections 2 and 3 replaced by section 2
Sections 2 and 3 are repealed and the following section is inserted
instead --
"
2. Terms used in this Act
25 In this Act, unless the contrary intention appears --
"corporation" means each of --
(a) the Electricity Networks Corporation
established by section 4(1)(b); and
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cl. 11
(b) the Regional Power Corporation established
by section 4(1)(d),
of the Electricity Corporations Act 2005;
"isolated system" means a system for the transmission
5 and distribution of electricity that is not connected
to --
(a) the North West interconnected system; or
(b) the South West interconnected system as
defined in section 3 of the Electricity
10 Corporations Act 2005;
"North West interconnected system" means the
interconnected transmission and distribution
systems, generating works and associated
works --
15 (a) located in the Pilbara region of the State; and
(b) into which electricity is supplied by one or
more of the electricity generation plants at
Dampier, Port Hedland and Cape Lambert,
as expanded or altered from time to time.
20 ".
11. Parts 2, 3, 4 and 5 repealed
Parts 2, 3, 4 and 5 are repealed.
12. Part 6 heading replaced
The heading to Part 6 is deleted and the following heading is inserted
25 instead --
"
Part 6 -- Access to electricity transmission and
distribution systems
".
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cl. 13
13. Section 89 amended
(1) Section 89(1) is amended as follows:
(a) by deleting ", 6 and 7" and inserting instead --
" and 6 ";
5 (b) in the definition of "electricity distribution capacity" --
(i) by inserting before "means" --
"
, in relation to the electricity distribution system
operated by a corporation,
10 "; and
(ii) by deleting "electricity distribution" in the second
place where it occurs;
(c) in the definition of "electricity distribution system" by
inserting before "means" --
15 " , in relation to a corporation, ";
(d) in the definition of "electricity transmission capacity" --
(i) by inserting before "means" --
"
, in relation to the electricity transmission system
20 operated by a corporation,
"; and
(ii) by deleting "electricity transmission" in the second
place where it appears;
(e) in the definition of "electricity transmission system" by
25 inserting before "means" --
" , in relation to a corporation, ";
(f) by deleting the definition of "new generation".
(2) Section 89(2) is amended by inserting before "means" --
" , in relation to a corporation, ".
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(3) After section 89(2) the following subsection is inserted --
"
(3) In this Part and in Schedules 5 and 6, in relation to the
Regional Power Corporation referred to in the
5 definition of "corporation" in section 2, references to
the electricity transmission system or the electricity
distribution system operated by a corporation --
(a) in Schedule 5 clause 6 and Schedule 6 clause 6
are references to --
10 (i) the North West interconnected system;
and
(ii) all isolated systems,
as if they were a single electricity system; and
(b) otherwise, are references to any electricity
15 transmission system or electricity distribution
system operated by that corporation.
".
14. Sections 92 and 93 repealed
Sections 92 and 93 are repealed.
20 15. Section 94 amended
(1) Section 94(1) is amended by deleting "the corporation by this Part and
by Schedules 5, 6 and 7" and inserting instead --
" a corporation by this Part and by Schedules 5 and 6 ".
(2) Section 94(2) is amended by inserting after "access" --
25 " by a corporation ".
(3) Section 94(3)(a) is amended by deleting "the corporation" and
inserting instead --
" a corporation ".
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cl. 16
(4) Section 94(4) is amended by deleting ", 6 and 7." and inserting
instead --
" and 6. ".
16. Section 95 amended
5 Section 95(1) is amended by deleting "100" and inserting instead --
" 96 ".
17. Section 95A amended
(1) Section 95A(2) and (3) are repealed and the following subsections are
inserted instead --
10 "
(2) A declaration is not to be made in respect of a relevant
provision unless the Minister is of the opinion that the
matters to which the relevant provision relates --
(a) no longer need to be dealt with, or will no
15 longer need to be dealt with on and after the
specified day, under this Act or any other
written law; or
(b) are adequately dealt with, or will be adequately
dealt with on and after the specified day,
20 under --
(i) another provision of this Act; or
(ii) Part 8 of the Electricity Industry
Act 2004 and the Code established
under that Part.
25 (3) A declaration is not to be made after the expiration of
the period of 18 months beginning on the day on which
Schedule 5 clause 17 of the Electricity Corporations
Act 2005 comes into operation.
".
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(2) Section 95A(4) is amended as follows:
(a) by deleting "100" and inserting instead --
" 96 ";
(b) in paragraph (a) by inserting after "specified" --
5 " relevant ".
(3) Section 95A(5) is amended in the definition of "relevant
provision" --
(a) by deleting ", 91, 92 or 93" and inserting instead --
" or 91 ";
10 (b) by deleting ", 6 or 7" and inserting instead --
" or 6 ".
18. Section 96 inserted
After section 95A the following section is inserted in Part 6 --
"
15 96. Regulations
The Governor may make regulations prescribing all
matters that are required or permitted by this Act to be
prescribed or are necessary or convenient to be
prescribed for giving effect to the purposes of this Act.
20 ".
19. Part 7 and Schedules 1, 2, 3 and 4 repealed
Part 7 and Schedules 1, 2, 3 and 4 are repealed.
20. Schedule 5 amended
(1) The amendments in this clause are to Schedule 5.
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(2) Clause 1 is amended as follows:
(a) in the definition of "firm capacity" --
(i) by inserting before "means" --
"
5 , in relation to the electricity transmission system
operated by a corporation,
"; and
(ii)
by inserting after "particular point" --
" in that system ";
10 (b) in the definition of "new capacity" --
(i) by inserting before "means" --
"
, in relation to the electricity transmission system
operated by a corporation,
15 "; and
(ii) by deleting "electricity transmission";
(c) in the definition of "non-firm capacity" --
(i) by inserting before "means" --
"
20 , in relation to the electricity transmission system
operated by a corporation,
"; and
(ii) by inserting after "particular point" --
" in that system ";
25 (d) in the definition of "spare capacity" by inserting before
"means" --
"
, in relation to the electricity transmission system
operated by a corporation,
30 ";
(e) in the definition of "user" by inserting before "means" --
" , in relation to a corporation, ".
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(3) Clause 2(1) is repealed and the following subclause is inserted
instead --
"
(1) A corporation must make available access to spare capacity
5 and new capacity of the electricity transmission system
operated by the corporation on --
(a) a non-discriminatory basis; and
(b) a first come first served basis,
to any existing or prospective user seeking access to either
10 or both of those capacities.
".
(4) Clause 2(1a) and (3) are amended by deleting "the corporation" in
each place where it appears and inserting instead --
" a corporation ".
15 (5) Clause 2(3)(c) is amended by deleting "the corporation's" and
inserting instead --
" a corporation's ".
(6) Clause 2(4) is amended by deleting "The corporation" and inserting
instead --
20 " A corporation ".
(7) Clause 2A(1) is amended by deleting "the corporation" in the first
place where it appears and inserting instead --
" a corporation ".
(8) Clause 2A(2) is amended by deleting "the corporation." and inserting
25 instead --
" a corporation. ".
(9) Clause 3 is amended as follows:
(a) by inserting after "transmission system" in the first place
where it appears --
30 " operated by a corporation ";
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cl. 20
(b) in paragraph (a) by inserting after "capacity" --
" of that system ".
(10) Clause 4 is repealed and the following clause is inserted instead --
"
5 4. Obligation to provide information
(1) A corporation must, not later than the prescribed day in each
year, prepare --
(a) a report on past and current demand for electricity
transmission capacity of the electricity transmission
10 system operated by the corporation (the "system");
(b) a forecast of future demand for such electricity
transmission capacity;
(c) a report on current firm capacity, non-firm capacity
and spare capacity of the system;
15 (d) a report on plans for new capacity currently being
considered by the corporation for the system;
(e) a forecast of --
(i) the expected costs of --
(I) maintaining the electricity
20 transmission capacity of; and
(II) providing new capacity for,
the system; and
(ii) any capital investment required for that
maintenance or provision;
25 and
(f) a report on the costs of the system,
and must provide to any person copies of those reports and
forecasts, upon payment to the corporation by that person of
the prescribed fee.
30 (2) Any existing or prospective user may request a corporation
to provide a report and forecast of firm capacity, non-firm
capacity, and spare capacity of the electricity transmission
system operated by the corporation as applicable to that
user's particular requirements.
35 ".
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cl. 20
(11) Clause 5 is amended as follows:
(a) by deleting "The corporation" and inserting instead --
" A corporation ";
(b) by deleting paragraphs (a) and (b) and "and" after
5 paragraph (a) and inserting instead --
"
(a) maintain the electricity transmission capacity of the
electricity transmission system operated by the
corporation; and
10 (b) provide new capacity in that system within a
reasonable time if requested by any existing or
prospective user,
".
(12) Clause 6(1) is amended as follows:
15 (a) by deleting "The corporation" and inserting instead --
" A corporation ";
(b) in paragraph (a)(i) by inserting after "system" --
" operated by the corporation (the "system") ";
(c) in paragraphs (a)(ii), (b) and (c) by deleting "electricity
20 transmission" in each place where it occurs.
(13) Clause 6(2) is repealed and the following subclause is inserted
instead --
"
(2) A corporation must adopt pricing methods which have as
25 their objective the recovery within a reasonable time from
users of --
(a) the costs of maintaining and providing the
electricity transmission capacity of the electricity
transmission system operated by the corporation;
30 (b) the capital investment in that system; and
(c) a reasonable rate of return on that capital
investment.
".
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cl. 21
(14) Clause 6(3) is amended as follows:
(a) by deleting "The corporation" and inserting instead --
" A corporation ";
(b) by deleting paragraph (a) and inserting the following
5 paragraph instead --
"
(a) make publicly available a schedule of the terms and
conditions of access to electricity transmission
capacity of the electricity transmission system
10 operated by the corporation;
".
21. Schedule 6 amended
(1) The amendments in this clause are to Schedule 6.
(2) Clause 1 is amended as follows:
15 (a) in the definition of "new capacity" --
(i) by inserting before "means" --
"
, in relation to the electricity distribution system
operated by a corporation,
20 "; and
(ii) by deleting "electricity distribution";
(b) in the definition of "spare capacity" by inserting before
"means" --
"
25 , in relation to the electricity distribution system
operated by a corporation,
";
(c) in the definition of "user" by inserting before "means" --
" , in relation to a corporation, ".
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cl. 21
(3) Clause 2(1) is repealed and the following subclause is inserted
instead --
"
(1) A corporation must, to the extent prescribed by order under
5 subclause (1b), make available access to spare capacity and
new capacity of the electricity distribution system operated
by the corporation on --
(a) a non-discriminatory basis; and
(b) a first come first served basis,
10 to any existing or prospective user seeking access to either
or both of those capacities.
".
(4) Clause 2(1a) is amended by deleting "the corporation" and inserting
instead --
15 " a corporation ".
(5) After clause 2(1a) the following subclauses are inserted --
"
(1b) The Minister, by order or orders published in the Gazette, is
to prescribe the manner and timing of a corporation's
20 obligations under subclause (1).
(1c) An order under subclause (1b) may be amended by further
order made by the Minister and published in the Gazette.
".
(6) Clause 2(3) is amended by deleting "the corporation" in each place
25 where it appears and inserting instead --
" a corporation ".
(7) Clause 2(3)(c) is amended by deleting "the corporation's" and
inserting instead --
" a corporation's ".
30 (8) Clause 2(4) is amended by deleting "The corporation" and inserting
instead --
" A corporation ".
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Division 4 Electricity Corporation Act 1994
cl. 21
(9) Clause 2A is amended as follows:
(a) in subclause (1) by deleting "the corporation" in the first
place where it appears and inserting instead --
" a corporation ";
5 (b) in subclause (2) by deleting "the corporation" and inserting
instead --
" a corporation ".
(10) Clause 3 is amended as follows:
(a) by inserting after "distribution system" in the first place
10 where it appears --
" operated by a corporation ";
(b) in paragraph (a) by inserting after "capacity" --
" of that system ".
(11) Clause 4 is repealed and the following clause is inserted instead --
15 "
4. Obligation to provide information
Any existing or prospective user may request a corporation
to provide a report and forecast of electricity distribution
capacity of the electricity distribution system operated by
20 the corporation as applicable to that user's particular
requirements.
".
(12) Clause 5 is amended as follows:
(a) by deleting "The corporation" and inserting instead --
25 " A corporation ";
(b) by deleting paragraphs (a) and (b) and "and" after
paragraph (a) and inserting instead --
"
(a) maintain the electricity distribution capacity of the
30 electricity distribution system operated by the
corporation; and
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cl. 21
(b) provide new capacity in that system within a
reasonable time if requested by any existing or
prospective user,
".
5 (13) Clause 6(1) is amended as follows:
(a) by deleting "The corporation" and inserting instead --
" A corporation ";
(b) in paragraph (a)(i) by inserting after "system" --
" operated by the corporation (the "system") ";
10 (c) in paragraphs (a)(ii), (b) and (c) by deleting "electricity
distribution" in each place where it appears.
(14) Clause 6(2) is repealed and the following subclause is inserted
instead --
"
15 (2) A corporation must adopt pricing methods which have as
their objective the recovery within a reasonable time from
users of --
(a) the costs of maintaining and providing the
electricity distribution capacity of the electricity
20 distribution system operated by the corporation;
(b) the capital investment in that system; and
(c) a reasonable rate of return on that capital
investment.
".
25 (15) Clause 6(3) is amended as follows:
(a) by deleting "The corporation" and inserting instead --
" A corporation ";
(b) by deleting paragraph (a) and inserting the following
paragraph instead --
30 "
(a) make publicly available a schedule of the terms and
conditions of access to electricity distribution
capacity of the electricity distribution system
operated by the corporation;
35 ".
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Division 5 Electricity Industry Act 2004
cl. 22
22. Schedule 7 repealed and saving provisions
(1) Schedule 7 is repealed.
(2) Any procurement of new generation that is in progress under
Schedule 7 immediately before its repeal by subclause (1) is to be
5 continued by the Electricity Retail Corporation after the
commencement of that subclause as if Schedule 7 clauses 1, 3 and 4
had not been repealed.
(3) Any act, matter or thing done or omitted to be done before the
commencement of subclause (1) by, to or in respect of Western Power
10 Corporation in relation to the procurement of new generation
mentioned in that subclause, is to be taken to have been done or
omitted by, to or in respect of the Electricity Retail Corporation.
(4) In subclause (3) --
"Western Power Corporation" has the meaning given to that term
15 in section 142(1).
Division 5 -- Electricity Industry Act 2004
23. The Act amended
The amendments in this Division are to the Electricity Industry
Act 2004*.
20 [* Act No. 5 of 2004.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 140.]
24. Section 3 amended
Section 3 is amended as follows:
25 (a) by deleting the definitions of "relevant corporation" and
"Western Power Corporation";
(b) by inserting in the appropriate alphabetical positions --
"
"electricity corporation" means --
30 (a) the Electricity Generation Corporation;
(b) the Electricity Networks Corporation;
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cl. 25
(c) the Electricity Retail Corporation; or
(d) the Regional Power Corporation;
"Electricity Generation Corporation" means the
body established by the Electricity Corporations
5 Act 2005 section 4(1)(a);
"Electricity Networks Corporation" means the body
established by the Electricity Corporations
Act 2005 section 4(1)(b);
"Electricity Retail Corporation" means the body
10 established by the Electricity Corporations
Act 2005 section 4(1)(c);
"Regional Power Corporation" means the body
established by the Electricity Corporations
Act 2005 section 4(1)(d);
15 "subsidiary", in relation to an electricity corporation,
has the meaning given to that term in the
Electricity Corporations Act 2005 section 3(1);
";
(c) by deleting the semicolon at the end of the definition of
20 "transmission system" and inserting a full stop instead.
25. Section 12 amended
Section 12(c) is amended by deleting "a relevant corporation." and
inserting instead --
"
25 an electricity corporation or a subsidiary of an
electricity corporation.
".
26. Section 31 amended
Section 31(4)(a) is amended by deleting "Electricity Corporation
30 Act 1994" and inserting instead --
" Electricity Corporations Act 2005 ".
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cl. 27
27. Section 39 amended
(1) Section 39(2)(d) is amended by deleting "or distribution licences" and
inserting instead --
" , distribution licences or integrated regional licences ".
5 (2) After section 39(2)(d) the following paragraph is inserted --
"
(da) compensation payments to be made to
customers by the Electricity Networks
Corporation or the Regional Power
10 Corporation, as the case requires, if the
corporation fails to observe standards referred
to in paragraph (d);
".
(3) Section 39(2c) is amended in the definition of "code matter" by
15 deleting "or" after paragraph (c) and inserting instead --
"
(ca) the matter mentioned in subsection (2)(da); or
".
28. Section 39A inserted
20 After section 39 the following section is inserted in Part 2
Division 7 --
"
39A. Review of code standards applying to Regional
Power Corporation
25 (1) In this section --
"access arrangement" has the meaning given to that
term in section 103;
"relevant day" means --
(a) for the first review, the day referred to in
30 subsection (3); and
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cl. 28
(b) for a subsequent review, the day referred to
in subsection (4);
"RPC standards" means standards referred to in
section 39(2)(d) that --
5 (a) are to be observed by the Regional Power
Corporation; and
(b) are provided for in a code prepared and
issued by the Minister under section 39;
"service standards" means standards relating to the
10 quality and reliability of the supply of electricity
that are provided for in an access arranagement.
(2) The Authority is to carry out reviews of the operation
and effect of the RPC standards.
(3) The first review is to be carried out as soon as is
15 practicable after the day on which the first access
arrangement is respect of the South West
interconnected system is approved under Part 8.
(4) Subsequent reviews are to be carried out as soon as is
practicable after the day on which the period fixed
20 under subsection (11) ends.
(5) The purpose of a review is to consider whether the
RPC standards are appropriate for each of the
transmission systems and distribution systems to which
they apply when assessed against the service standards
25 that apply to the South West interconnected system.
(6) When carrying out a review the Authority is to give
members of the public an opportunity to comment on
matters relevant to the review.
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cl. 28
(7) The Authority is to give the Minister a report based on
a review within --
(a) the period of 4 months after the relevant day;
or
5 (b) any longer period allowed by the Minister
under subsection (8).
(8) The Minister may, at the request of the Authority,
extend the period referred to in subsection (7)(a) by not
more than 28 days.
10 (9) A report may contain recommendations as to changes
that should be made to the RPC standards.
(10) Within 28 days after the day on which a report is given
to the Minister, the Authority is to --
(a) make the report available for public
15 inspection in such manner as the Authority
considers appropriate; and
(b) cause a notice giving details of where copies
of the report can be obtained to be
published --
20 (i) in a daily newspaper circulating
throughout the State: and
(ii) on its internet website.
(11) The Minister, by order published in the Gazette, is to
fix a period for subsequent reviews for the purposes of
25 subsection (4).
(12) A period fixed under subsection (11) cannot be longer
than 5 years after the day on which a notice in respect
of the last preceding report under this section was
published under subsection (10)(b)(i).
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cl. 29
(13) The Minister, by order published in the Gazette,
may --
(a) amended an order made under subsection
(1); or
5 (b) revoke an order made under subsection (11)
and replace it with another order.
".
29. Section 45 amended
Section 45(5) is amended as follows:
10 (a) by deleting the full stop at the end of the definition of
"licensee" and inserting a semicolon instead;
(b) after the definition of "licensee" by inserting --
"
"relevant corporation" means --
15 (a) the Electricity Networks Corporation;
(b) the Regional Power Corporation; or
(c) a subsidiary of a corporation mentioned in
paragraph (a) or (b).
".
20 30. Section 46 amended
(1) Section 46(1) is amended as follows:
(a) by deleting the full stop at the end of the definition of
"commencement day" and inserting a semicolon instead;
(b) after the definition of "commencement day" by inserting --
25 "
"Western Power Corporation" means the body
corporate that was the corporation under the
Electricity Corporation Act 1994 section 4 before
that section was repealed by the Electricity
30 Corporations Act 2005 Schedule 5 clause 11.
".
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cl. 31
(2) After section 46(5) the following subsection is inserted --
"
(6) Where after the day on which the Electricity
Corporations Act 2005 Schedule 5 clause 30 comes
5 into operation --
(a) an electricity corporation undertakes an activity
that immediately before that day was
undertaken by the Western Power Corporation;
and
10 (b) that activity is required to be licensed under
section 7 but is not so licensed,
the electricity corporation is to be treated as an existing
operator in respect of that activity for the purposes of
this section.
15 ".
31. Sections 54A and 54B inserted
After section 54 the following sections are inserted --
"
54A. Electricity corporations required to offer to supply
20 electricity under prescribed form of contract
(1) In this section --
"corporation" means the Electricity Retail
Corporation or the Regional Power Corporation;
"prescribed form of contract" means a form of
25 contract prescribed under the Electricity
Corporations Act 2005 section 181(3);
"relevant contract" means --
(a) a contract referred to in the Electricity
Corporations Act 2005 section 181(2) between
30 a corporation and a customer; or
(b) a contract in the form of a prescribed form of
contract entered into by a corporation and a
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cl. 31
customer other than a contract referred to in
paragraph (a);
"relevant day" means the day on which the Electricity
Corporations Act 2005 Part 2 comes into
5 operation.
(2) A corporation is required to offer to supply electricity
under a prescribed form of contract to customers who
request supply on or after the relevant day.
(3) If, following the grant of a retail licence or an
10 integrated regional licence to a corporation, the
corporation is required by regulations referred to in
section 48(2) to offer to supply electricity to customers
under a standard form contract, then on and from the
day on which that obligation has effect --
15 (a) the obligation in subsection (2) ceases to have
effect; and
(b) any relevant contract in force on that day is to
be taken to be amended so that its terms,
conditions and provisions are consistent with
20 those of the standard form contract.
(4) The regulations may --
(a) provide for exceptions to the obligation in
subsection (2);
(b) provide for and in relation to the standards of
25 service that a corporation is to provide to
customers in connection with the supply of
electricity;
(c) provide for the inclusion in relevant contracts
of requirements that the corporation comply
30 with any such standard.
(5) Section 48(4) applies to regulations made for the
purposes of subsection (4)(b).
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cl. 32
54B. Enforcement of obligation in section 54A(2)
(1) If, in the opinion of the Authority, a corporation fails to
comply with the obligation in section 54A(2), the
Authority may, subject to subsection (2), do one or
5 more of the following --
(a) serve a letter of reprimand on the corporation;
or
(b) order the corporation to pay a monetary penalty
fixed by the Authority but not exceeding
10 $100 000.
(2) The Authority is not to take action under
subsection (1)(b) unless the Authority has --
(a) notified the corporation of the proposed action
and the reasons for it; and
15 (b) given the corporation a reasonable opportunity
to make submissions on the matter.
(3) The Authority may recover a penalty imposed under
subsection (1)(b) in a court of competent jurisdiction as
a debt due by the corporation to the State.
20 ".
32. Sections 55 and 56 repealed
Sections 55 and 56 are repealed.
33. Section 60 amended
Section 60 is amended by deleting the definition of "corporation" and
25 inserting instead --
"
"corporation" means --
(a) the Electricity Networks Corporation;
(b) the Regional Power Corporation; or
page 178
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Electricity Industry Act 2004 Division 5
cl. 34
(c) a subsidiary of a corporation mentioned in
paragraph (a) or (b);
".
34. Section 71 amended
5 Section 71(4) is amended by deleting ", Western Power Corporation
is the supplier of last resort for the designated area." and inserting
instead --
"
--
10 (a) the Electricity Retail Corporation is the supplier
of last resort for the designated area if
electricity is supplied to customers in the area
from the South West interconnected system;
and
15 (b) the Regional Power Corporation is the supplier
of last resort for the designated area if
electricity is not supplied to customers in the
area from the South West interconnected
system.
20 ".
35. Section 106 amended
Section 106(1) is amended by deleting "Electricity Corporation
Act 1994" and inserting instead --
"
25 Electricity Transmission and Distribution
Systems (Access) Act 1994
".
page 179
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 5 Electricity Industry Act 2004
cl. 36
36. Section 119 amended
Section 119(1) is amended by deleting the definition of "existing
facilities" and inserting instead --
"
5 "existing facilities" means network infrastructure
facilities that are transferred to the Electricity
Networks Corporation or the Regional Power
Corporation under the Electricity Corporations
Act 2005 Part 9;
10 ".
37. Part 9A inserted
After Part 9 the following Part is inserted --
"
Part 9A -- Tariff equalisation
15 129A. Purpose of this Part
The purpose of this Part is to contribute towards
maintaining the financial viability of the Regional
Power Corporation while enabling the regulated retail
tariffs for electricity that is not supplied from the South
20 West interconnected system to be, so far as is
practicable, the same as the regulated retail tariffs for
electricity that is supplied from that system.
129B. Terms used in this Part
In this Part, unless the contrary intention appears --
25 "Code" means the Code for the time being in force
under section 104;
"efficient cost of supply" means those costs that
would be incurred by a prudent service provider
acting efficiently and in accordance with accepted
30 and good industry practice;
page 180
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Electricity Industry Act 2004 Division 5
cl. 37
"regulated retail tariffs" means fees and charges
prescribed as referred to in section 132(1) or the
Energy Operators (Powers) Act 1979
section 124(4);
5 "tariff equalisation contribution" means a tariff
equalisation contribution determined under
section 129D(2);
"Tariff Equalisation Fund" means the account
referred to in section 129C;
10 "user" means a network user as defined in section 103
or a user as defined in the Electricity Transmission
and Distribution Systems (Access) Act 1994
Schedule 5 clause 1 or Schedule 6 clause 1.
129C. Tariff Equalisation Fund
15 (1) There is to be an account called the "Tariff
Equalisation Fund" as part of the Trust Fund
constituted under the Financial Administration and
Audit Act 1985 section 9.
(2) There are to be credited to the Tariff Equalisation
20 Fund --
(a) each tariff equalisation contribution paid by the
Electricity Networks Corporation under
section 129F(1);
(b) the amount of any investment income, as
25 defined in the Financial Administration and
Audit Act 1985 section 39(2), determined by the
Treasurer (at a rate determined by the
Treasurer) to be attributable to the investment
under section 38 of that Act of money standing
30 to the credit of the Tariff Equalisation Fund;
and
(c) any other amount lawfully received for the
purposes of the Fund.
page 181
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 5 Electricity Industry Act 2004
cl. 37
129D. Determination of tariff equalisation contributions
(1) The Treasurer, at such intervals of time as are
prescribed, must determine whether there is a disparity
between --
5 (a) the efficient cost of supply of electricity to
persons in areas outside of the South West
interconnected system; and
(b) the revenues available to the Regional Power
Corporation from supplying electricity to
10 persons in areas outside of the South West
interconnected system at the regulated retail
tariffs.
(2) If the Treasurer determines that a disparity exists, the
Treasurer must determine, by notice published in the
15 Gazette, the tariff equalisation contribution that is
payable by the Electricity Networks Corporation for
the purpose of this Part in respect of a period specified
in the determination.
(3) In making a determination for the purposes of
20 subsection (2) the Treasurer must have regard to --
(a) the amount required to compensate the
Regional Power Corporation for the disparity;
(b) the extent to which the amount paid to the
Regional Power Corporation under
25 section 129G(1) in respect of a previous period
was greater or less than the disparity
between --
(i) the cost referred to in subsection (1)(a);
and
30 (ii) the revenues referred to in
subsection (1)(b),
in respect of that previous period;
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Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Electricity Industry Act 2004 Division 5
cl. 37
(c) the moneys standing to the credit of the Tariff
Equalisation Fund;
(d) any service standards to be observed by the
Regional Power Corporation; and
5 (e) any other prescribed matters.
(4) In subsection (3)(d) --
"service standards" means standards referred to in
section 39(2)(d) that are provided for in a code
prepared and issued under section 39.
10 (5) The Treasurer must consult with the Minister before
making a determination under this section.
129E. Treasurer may seek advice from the Authority
(1) Before making a determination under section 129D(2)
the Treasurer may ask the Authority for advice on any
15 matter referred to in section 129D(3) or any other
matter that the Treasurer considers relevant.
(2) It is a function of the Authority to give advice when
asked to do so under subsection (1).
(3) Advice given by the Authority must be published in the
20 Gazette with the notice under section 129D(2).
129F. Payment and passing on of tariff equalisation
contributions
(1) The Electricity Networks Corporation must pay tariff
equalisation contributions into the Tariff Equalisation
25 Fund at the times, and in the manner, prescribed.
(2) Users must make payments to the Electricity Networks
Corporation in accordance with the Code in respect of
tariff equalisation contributions payable by the
Electricity Networks Corporation under subsection (1).
page 183
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 5 Electricity Industry Act 2004
cl. 37
(3) Without limiting Part 8 Division 2, the Code may make
provision --
(a) for the determination of the amounts payable by
users under subsection (2) and the manner in
5 which those amounts are to be collected; and
(b) for the duties and powers of the Electricity
Networks Corporation in relation to tariff
equalisation contributions to be taken into
account --
10 (i) by the Authority in deciding whether to
give its approval to an arrangement
lodged under section 104(2)(c); and
(ii) in the formulation of the network access
pricing regulation principles referred to
15 in section 104(2)(h)(i).
(4) Until there is an access arrangement for the network
infrastructure facilities of the Electricity Networks
Corporation --
(a) subsection (2) does not have effect;
20 (b) users must make payments to the Electricity
Networks Corporation in accordance with the
regulations in respect of tariff equalisation
contributions payable by the Electricity
Networks Corporation under subsection (1);
25 and
(c) the regulations may make provision for the
determination of the amounts payable by users
under paragraph (b) and the manner in which
those amounts are to be collected.
30 (5) In subsection (4) --
"user" means a user as defined in the Electricity
Transmission and Distribution Systems (Access)
Act 1994 Schedule 5 clause 1 or Schedule 6
clause 1.
page 184
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Electricity Industry Act 2004 Division 5
cl. 37
129G. Payments from the Fund
(1) If a tariff equalisation contribution is payable by the
Electricity Networks Corporation in respect of a
period, the Treasurer must pay to the Regional Power
5 Corporation in respect of that period such amount as
the Treasurer considers necessary for the purpose of
this Part having regard to --
(a) the matters referred to in section 129D(3)(a),
(b), (c) and (d); and
10 (b) any other prescribed matters.
(2) Payments under subsection (1) are to be made from the
Tariff Equalisation Fund.
129H. Information
The Electricity Networks Corporation and the Regional
15 Power Corporation must provide such information, or
access to information, as is necessary to assist the
Treasurer and the Authority to perform their functions
under this Part.
129I. Treasurer to recommend regulations
20 Regulations are not to be made for this Part except on
the Treasurer's recommendation.
129J. Delegation by Treasurer
The Financial Administration and Audit Act 1985
section 57(2) and (3) to (11) apply to a power
25 conferred on the Treasurer by a provision of this Part
(other than section 129I) as if it were conferred by that
Act.
".
page 185
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 6 Energy Corporations (Transitional and Consequential
cl. 38
Division 6 -- Energy Corporations (Transitional and Consequential
Provisions) Act 1994
38. The Act amended
The amendments in this Division are to the Energy Corporations
5 (Transitional and Consequential Provisions) Act 1994*.
[* Act No. 89 of 1994.]
39. Section 50 amended
(1) Section 50(1)(b) is amended by deleting "references to a corporation
or the corporations jointly or severally in accordance with the transfer
10 order." and inserting instead --
"
references to --
(i) a new corporation; or
(ii) 2 or more of the new corporations
15 jointly or severally,
in accordance with a transfer order.
".
(2) After section 50(1) the following subsection is inserted --
"
20 (1a) In subsection (1)(b) --
"new corporation" and "transfer order " have the
meanings given to those terms in section 142(1) of
the Electricity Corporations Act 2005.
".
page 186
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Energy Operators (Powers) Act 1979 Division 7
cl. 40
Division 7 -- Energy Operators (Powers) Act 1979
40. The Act amended
The amendments in this Division are to the Energy Operators
(Powers) Act 1979*.
5 [* Reprinted as at 15 September 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 144.]
41. Section 4 amended
Section 4(1) is amended as follows:
10 (a) by deleting the definition of "electricity corporation" and
inserting instead --
"
"electricity corporation" means --
(a) the Electricity Generation Corporation
15 established by section 4(1)(a) of the
Electricity Corporations Act 2005;
(b) the Electricity Networks Corporation
established by section 4(1)(b) of the
Electricity Corporations Act 2005;
20 (c) the Electricity Retail Corporation established
by section 4(1)(c) of the Electricity
Corporations Act 2005; or
(d) the Regional Power Corporation established
by section 4(1)(d) of the Electricity
25 Corporations Act 2005;
";
(b) by deleting the definition of "energy operator" and inserting
instead --
"
30 "energy operator" means --
(a) an electricity corporation if regulations have
not been made for the purposes of
page 187
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 7 Energy Operators (Powers) Act 1979
cl. 42
section 45(1) of the Electricity Industry
Act 2004;
(b) in a prescribed provision as defined in
section 45(1) of the Electricity Industry
5 Act 2004, a person who, under that section,
is included in a reference in that prescribed
provision to an energy operator;
(c) in a provision of this Act referred to in
Schedule 2 Part 1 or 2 of the Energy
10 Coordination Act 1994, a person who, under
section 11ZO of that Act, is included in a
reference in that provision to an energy
operator;
(d) in a provision to which paragraphs (b) and
15 (c) both apply, a person referred to in either
of those paragraphs;
";
(c) by deleting the definition of "Western Power Corporation".
42. Section 124 amended
20 (1) Section 124(1) is amended as follows:
(a) by deleting "the Western Power Corporation (in this section
called "the corporation")" and inserting instead --
" an electricity corporation ";
(b) by deleting "an electricity" and inserting instead --
25 " the ".
(2) Section 124(1a), (2) and (4) are amended by deleting "the
corporation" and inserting instead --
" an electricity corporation ".
(3) Section 124(4)(a), (b), (d)(i), (d)(iaa), (d)(ia), (d)(vii), (d)(xi), (e), (h),
30 (j), (k), (n), (o) and (p) are amended by deleting "an electricity
corporation" in each place where it occurs and inserting instead --
" the corporation ".
page 188
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Equal Opportunity Act 1984 Division 8
cl. 43
(4) Section 124(4)(d)(iaa), (h), (j) and (o) are amended by deleting "the
electricity corporation" in each place where it occurs and inserting
instead --
" the corporation ".
5 (5) Section 124(5) is amended by deleting "the Western Power
Corporation" in both places where it occurs and inserting instead --
" an electricity corporation ".
(6) After section 124(5) the following subsection is inserted --
"
10 (6) In this section --
"the corporation" includes any subsidiary, as defined
in section 3(1) of the Electricity Corporations
Act 2005, of the corporation.
".
15 Division 8 -- Equal Opportunity Act 1984
43. The Act amended
The amendments in this Division are to the Equal Opportunity
Act 1984*.
[* Reprint 4 as at 1 April 2005.]
20 44. Section 139 amended
Section 139(1)(c) is deleted and the following paragraph is inserted
instead --
"
(c) each of the bodies established by section 4(1)
25 of the Electricity Corporations Act 2005,
namely --
(i) the Electricity Generation Corporation;
(ii) the Electricity Networks Corporation;
(iii) the Electricity Retail Corporation; and
page 189
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 9 Gas Pipelines Access (Western Australia) Act 1998
cl. 45
(iv) the Regional Power Corporation;
".
Division 9 -- Gas Pipelines Access (Western Australia) Act 1998
45. The Act amended
5 The amendments in this Division are to the Gas Pipelines Access
(Western Australia) Act 1998*.
[* Reprint 2 as at 8 October 2004.]
46. Section 80 amended
(1) Section 80(1) and (2)(b) are amended by deleting "energy" and
10 inserting instead --
" electricity ".
(2) Section 80(5) is repealed and the following subsection is inserted
instead --
"
15 (5) In this section --
"electricity corporation" means a body established by
section 4(1) of the Electricity Corporations
Act 2005, namely --
(a) the Electricity Generation Corporation;
20 (b) the Electricity Networks Corporation;
(c) the Electricity Retail Corporation; and
(d) the Regional Power Corporation.
".
page 190
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Land Administration Act 1997 Division 10
cl. 47
Division 10 -- Land Administration Act 1997
47. The Act amended
The amendments in this Division are to the Land Administration
Act 1997*.
5 [* Reprinted as at 22 June 2001.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 240-1.]
48. Section 160 amended
Section 160(1)(c) is deleted and the following paragraph is inserted
10 instead --
"
(c) in the case of the Minister referred to in
section 159(c), to a body established by
section 4(1) of the Electricity Corporations
15 Act 2005, namely --
(i) the Electricity Networks Corporation;
and
(ii) the Regional Power Corporation,
or to an officer of such a body;
20 ".
page 191
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 11 Metropolitan Region Town Planning Scheme Act 1959
cl. 49
Division 11 -- Metropolitan Region Town Planning Scheme Act 1959
49. The Act amended
The amendments in this Division are to the Metropolitan Region
Town Planning Scheme Act 1959*.
5 [* Reprint 9 as at 1 August 2003.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 283.]
50. Second Schedule amended
The Second Schedule item 13 is deleted and the following item is
10 inserted instead --
"
13. The generation, transmission and distribution of electricity.
".
Division 12 -- Public Sector Management Act 1994
15 51. The Act amended
The amendments in this Division are to the Public Sector
Management Act 1994*.
[* Reprint 6 as at 14 May 2004.
For subsequent amendments see Western Australian Legislation
20 Information Tables for 2004, Table 1, p. 368.]
52. Schedule 1 amended
Schedule 1 item 21 is deleted and the following item is inserted
instead --
"
25 21. A body established by section 4(1) of the Electricity
Corporations Act 2005, namely --
(i) the Electricity Generation Corporation;
(ii) the Electricity Networks Corporation;
(iii) the Electricity Retail Corporation; and
30 (iv) the Regional Power Corporation.
".
page 192
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Public Works Act 1902 Division 13
cl. 53
Division 13 -- Public Works Act 1902
53. The Act amended
The amendments in this Division are to the Public Works Act 1902*.
[* Reprinted as at 1 June 2001.
5 For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 372.]
54. Section 5A amended
Section 5A(d) is amended by deleting "Corporation Act 1994" and
inserting instead --
10 " Corporations Act 2005 ".
55. Section 5B amended
Section 5B(1)(c) is deleted and the following paragraph is inserted
instead --
"
15 (c) in the case of the Minister of the Crown
referred to in section 5A(d), to a body
established by section 4(1) of the Electricity
Corporations Act 2005, namely --
(i) the Electricity Generation Corporation;
20 (ii) the Electricity Networks Corporation;
(iii) the Electricity Retail Corporation; and
(iv) the Regional Power Corporation,
or to an officer of such a body;
".
page 193
Electricity Corporations Bill 2005
Schedule 5 Amendments to other Acts
Division 14 State Records Act 2000
cl. 56
Division 14 -- State Records Act 2000
56. The Act amended
The amendments in this Division are to the State Records Act 2000*.
[* Act No. 52 of 2000.]
5 57. Schedule 3 amended
Schedule 3 item 1 is deleted and the following item is inserted
instead --
"
1. A body established by section 4(1) of the Electricity
10 Corporations Act 2005, namely --
(i) the Electricity Generation Corporation;
(ii) the Electricity Networks Corporation;
(iii) the Electricity Retail Corporation; and
(iv) the Regional Power Corporation.
15 ".
Division 15 -- Town Planning and Development Act 1928
58. The Act amended
The amendments in this Division are to the Town Planning and
Development Act 1928*.
20 [* Reprinted as at 3 November 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 458 and Act No. 49
of 2004.]
59. Section 27A amended
25 Section 27A(1)(b)(iv) is deleted and the following subparagraph is
inserted instead --
"
(iv) the holder of a distribution licence or
integrated regional licence as defined in
page 194
Electricity Corporations Bill 2005
Amendments to other Acts Schedule 5
Town Planning and Development Act 1928 Division 15
cl. 59
section 3 of the Electricity Industry
Act 2004 for the purpose of the supply
of electricity from or access to a
distribution system as defined in that
5 section;
".
page 195
Electricity Corporations Bill 2005
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
accounting standard......................................................................Sch. 4, cl. 1(2)
acquire.......................................................................................................34(1)
ancillary services........................................................................................34(1)
area of operations.......................................................................................52(1)
arrangement...............................................................................................75(3)
asset.........................................................................................................142(1)
Authority ....................................................................................................... 72
bank.........................................................................................................121(2)
board ...........................................................................................................3(1)
business arrangement .................................................................................59(1)
chief executive officer..................................................................................3(1)
commencement day..................................................................................142(1)
Commissioner for Public Sector Standards ...................................................3(1)
community service obligations ...................................................................99(1)
company ......................................................................................Sch. 4, cl. 1(2)
corporation ............................................... 3(1), 35, 41, 44, 50, 60(1), 80, 114(1)
corporation or corporations previously concerned.........................161(1), 164(2)
Corporations Act..........................................................................................3(1)
customer....................................................................................................54(1)
debt paper................................................................................................127(1)
declared matters.........................................................................................53(2)
director ........................................................................................................3(1)
director ............................................................................................ Sch. 1, cl. 1
disposal order.............................................................................................67(2)
dispose of ..................................................................................................67(1)
distribution licence.....................................................................................54(1)
document.................................................................................................114(1)
Economic Regulation Authority ...................................................................3(1)
electricity.....................................................................................................3(1)
electricity distribution system.....................................................................60(1)
Electricity Generation Corporation...............................................................3(1)
Electricity Networks Corporation .................................................................3(1)
Electricity Retail Corporation.......................................................................3(1)
electricity transmission system ...................................................................60(1)
executive officer ..........................................................................................3(1)
financial records...........................................................................Sch. 4, cl. 1(2)
financial year ...............................................................................Sch. 4, cl. 1(1)
function .......................................................................................................3(1)
gas...............................................................................................................3(1)
page 196
Electricity Corporations Bill 2005
Defined Terms
Gas Corporation assignee.........................................................................175(1)
Government agreement ............................................................................152(1)
information..............................................................................................116(1)
instrument................................................................................................187(1)
integrated regional licence..........................................................................54(1)
interest rate ..............................................................................................129(2)
latest draft plan ..........................................................................................93(1)
latest draft statement ................................................................................102(1)
liability ....................................................................................................142(1)
liability ....................................................................................................192(3)
management...............................................................................................21(2)
member of staff............................................................................................3(1)
members of staff ..............................................................................26(1), 31(1)
new corporation .......................................................................................142(1)
non-executive director..................................................................................3(1)
notifiable interest .......................................................................Sch. 2, cl. 12(1)
original guarantee ....................................................................................174(2)
participate..................................................................................................59(1)
pay ............................................................................................Sch. 2, cl. 15(6)
prescribed contract......................................................................................... 80
prescribed customer ...................................................................................54(1)
prescribed day............................................................................Sch. 4, cl. 32(1)
principal Act............................................................................................142(1)
public service officer..................................................................................12(1)
records.....................................................................................................142(1)
Regional Power Corporation ........................................................................3(1)
regulations...................................................................................Sch. 4, cl. 1(1)
relative.......................................................................................Sch. 2, cl. 14(1)
relevant new corporation..........................................................................187(1)
relevant officials ......................................................................................178(1)
renewable sources ......................................................................................34(1)
right.........................................................................................................142(1)
second party...............................................................................................77(1)
services......................................................................................................54(1)
significant asset..........................................................................................67(1)
South West interconnected system................................................................3(1)
specified .................................................................................. 54(6), 80, 114(1)
specified day................................................................................164(2), 166(1)
State tax...................................................................................................177(1)
subsidiary ....................................................................................................3(1)
system ....................................................Sch. 5, cl. 20(10), cl. 20(12), cl. 21(13)
tariff customer..........................................................................................181(1)
telecommunication services........................................................................34(1)
the 1994 Act ............................................................................................142(1)
the designated period........................................................................38(2), 47(2)
page 197
Electricity Corporations Bill 2005
Defined Terms
third party ..................................................................................................77(1)
transaction .................................................................................................68(1)
transfer order ...........................................................................................142(1)
Treasurer .....................................................................................................3(1)
Treasury officer .......................................................................................137(1)
unallocated asset or liability .......................................................................53(1)
Western Power Corporation .....................................................................142(1)
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