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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Central Coast Water Corporation
Bill 2006
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 3
Part 2 Central Coast Water Corporation
Division 1 Establishment of the Corporation
4 Establishment of the Corporation 5
5 Principal objectives of the Corporation 5
6 Status of the Corporation 5
7 Share capital, shares and shareholders 6
8 Constitution of the Corporation 6
9 Constitution of subsidiaries 7
10 Voting shareholders' agreement 7
11 Application of Commonwealth Corporations Act 2001 8
Central Coast Water Corporation Bill 2006
Contents
Page
Division 2 Operation and management of the
Corporation
12 Board of directors 9
13 Chief executive officer 10
14 Operation and management 10
15 Staff 10
16 Non-commercial activities 11
17 Power of voting shareholders to notify Board of
council policies 12
18 Power of voting shareholders to give directions in
public interest 12
19 Dividends 13
20 Tax-equivalents 13
21 Corporation's obligations not guaranteed by
constituent councils 14
22 State taxation 15
23 Private corporations and subsidiaries 15
24 Acquisition and disposal of assets, investments and
liabilities 16
25 Sale or disposal of main undertaking 17
Division 3 Legal capacity and powers of the
Corporation
26 Interpretation 17
27 Objects of Division 18
28 General powers of the Corporation 18
29 Restrictions on the Corporation 18
30 Persons having dealings with the Corporation or
property 19
31 Effect of fraud 21
Division 4 Transfer of staff, assets, rights and
liabilities
32 Transfer of staff, assets, rights and liabilities 21
Part 3 Operating licences
33 Grant of operating licence 23
34 Terms and conditions of operating licences 23
35 Amendment of operating licence 24
36 Term of operating licence 24
37 Annual licence fees 24
38 Area covered by operating licence 24
39 Contravention of operating licence 25
40 Enforcement of operating licence by IPART 25
41 Cancellation of operating licence 26
Contents page 2
Central Coast Water Corporation Bill 2006
Contents
Page
Part 4 Accountability
42 Statement of corporate intent: timetable and
procedure 28
43 Statement of corporate intent: contents 29
44 Half-yearly reports 29
45 Annual reports and financial reports 29
46 Special reports of Auditor-General 30
47 Information to be laid before Parliament 30
48 Procedure if Parliament not in session 32
49 Other information to be supplied 32
50 Application of this Part where no subsidiaries 32
Part 5 Independent Pricing and Regulatory Tribunal
51 Regulatory functions of IPART 33
52 Operational and other audits 33
Part 6 Miscellaneous
53 Act binds Crown 34
54 Operation of Act 34
55 Duties and liabilities of directors and other officers 34
56 Liability of directors and other officers in respect
of particular obligations 34
57 Offences 35
58 Application of Public Finance and Audit Act 1983 35
59 Application of Independent Commission Against
Corruption Act 1988 35
60 Regulations 35
61 Amendment of other Acts 35
62 Savings and transitional provisions 36
63 Review of Act 36
Schedule 1 Provisions for inclusion in constitution of
the Corporation 37
Schedule 2 Provisions for inclusion in constitutions of
subsidiaries 39
Schedule 3 Constitution and procedure of Board 41
Schedule 4 Chief executive officer 46
Schedule 5 Transfer of staff, assets, rights and liabilities 48
Schedule 6 Duties and liabilities of directors and other
officers 52
Schedule 7 Amendment of other Acts 63
Schedule 8 Savings, transitional and other provisions 65
Contents page 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Central Coast Water Corporation
Bill 2006
Act No , 2006
An Act to provide for the constitution and functions of the Central Coast Water
Corporation and for its establishment as a water supply authority under the Water
Management Act 2000; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Central Coast Water Corporation Bill 2006
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Central Coast Water Corporation Act 2006.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
subject to this section.
(2) The proclamation to commence section 4 (the proclamation
constituting the Corporation) may not be made except on the
Minister's recommendation.
(3) The Minister's recommendation for the proclamation constituting the
Corporation may not be given unless each of the constituent councils:
(a) has, by a resolution of the council, approved a constitution for the
Corporation, being a constitution that complies with section 8,
and
(b) has, pursuant to a resolution of the council, entered into a voting
shareholders' agreement with the other constituent council, being
an agreement that complies with section 10, and
(c) has, pursuant to a resolution of the council, requested the making
of the recommendation.
(4) A constituent council may not take any action under subsection (3)
except with the consent of the Minister and subject to such conditions,
if any, as the Minister may specify and, for the avoidance of doubt,
section 358 of the Local Government Act 1993 does not apply to or in
respect of any such action.
(5) Schedule 7.2 [4] commences:
(a) except as provided by paragraph (b), on the first anniversary of
the commencement of section 4, or
(b) if a proclamation commencing Schedule 7.2 [4] (the
proclamation establishing the Corporation as a water supply
authority) is made before that anniversary, on the day appointed
by that proclamation.
(6) The day appointed by the proclamation establishing the Corporation as
a water supply authority may be a day occurring any time before, or
within 12 months after, the first anniversary of the commencement of
section 4.
Page 2
Central Coast Water Corporation Bill 2006 Clause 3
Preliminary Part 1
(7) The proclamation establishing the Corporation as a water supply
authority may not be made except on the Minister's recommendation.
(8) The Minister's recommendation for the proclamation establishing the
Corporation as a water supply authority may not be given unless each
of the constituent councils has, pursuant to a resolution of the council,
requested the making of the recommendation.
3 Definitions (cf State Owned Corporations Act 1989, section 3)
(1) In this Act:
area of operations, in relation to the Corporation, means the area to
which its operating licence applies, as referred to in section 38.
assets means any legal or equitable estate or interest (whether present or
future and whether vested or contingent) in real or personal property of
any description (including money), and includes securities, choses in
action and documents.
Board, in relation to the Corporation, means the board of directors of
the Corporation.
board, in relation to a subsidiary of the Corporation, means the board of
directors of the subsidiary.
constituent council means the Gosford City Council or the Wyong
Shire Council.
constitution means:
(a) in relation to the Corporation, the constitution of the Corporation
referred to in section 8, or
(b) in relation to any of the Corporation's subsidiaries that is a
company within the meaning of the Corporations Act 2001 of the
Commonwealth, the constitution of the company within the
meaning of that Act, or
(c) in relation to any of the Corporation's subsidiaries that is not such
a company, the subsidiary's charter or memorandum and articles
of association.
director means:
(a) in relation to the Corporation, a member of the Board of the
Corporation, and
(b) in relation to a subsidiary of the Corporation, a member of the
board of the subsidiary.
exercise a function includes perform a duty.
function includes power, authority and duty.
Page 3
Clause 3 Central Coast Water Corporation Bill 2006
Part 1 Preliminary
government entity means:
(a) a State department, administrative office, instrumentality,
agency, authority or entity, that is not a corporation, or
(b) a division, branch or other part of such a department, office,
instrumentality, agency, authority or entity.
IPART means the Independent Pricing and Regulatory Tribunal.
liabilities means liabilities, debts and obligations (whether present or
future and whether vested or contingent).
operating licence means an operating licence granted under section
33 (1).
rights means all rights, powers, privileges and immunities (whether
present or future and whether vested or contingent).
subsidiary means a body corporate that would be a subsidiary of the
Corporation if the Corporation were a company registered under the
Corporations Act 2001 of the Commonwealth.
the Corporation means the Central Coast Water Corporation referred to
in section 4.
the State includes the Crown in right of New South Wales and the
Government of New South Wales.
transfer order means an order referred to in section 32 (1) or (2) or
section 41 (3).
voting shareholders, in relation to the Corporation or any of its
subsidiaries, means the shareholders of the Corporation as referred to in
section 7, in their capacities as shareholders in the Corporation.
water supply authority has the same meaning as it has in the Water
Management Act 2000.
(2) Notes included in this Act do not form part of this Act.
Page 4
Central Coast Water Corporation Bill 2006 Clause 4
Central Coast Water Corporation Part 2
Part 2 Central Coast Water Corporation
Division 1 Establishment of the Corporation
4 Establishment of the Corporation (cf State Owned Corporations Act 1989,
section 20A)
There is constituted by this Act a corporation under the name of the
Central Coast Water Corporation.
5 Principal objectives of the Corporation (cf State Owned Corporations Act
1989, section 20E)
(1) The principal objectives of the Corporation are as follows:
(a) to promote the efficient delivery of water supply, sewerage and
drainage services for the long-term interests of consumers with
respect to price, quality, safety, reliability and security of supply,
(b) to maximise water conservation, demand management and the
use of recycled water,
(c) to be a successful business and, to this end:
(i) to operate at least as efficiently as any comparable
business, and
(ii) to maximise the net worth of the constituent councils'
investment in the Corporation,
(d) to exhibit a sense of social responsibility by having regard to the
interests of the community in which it operates,
(e) where its activities affect the environment, to conduct its
operations in compliance with the principles of ecologically
sustainable development contained in section 6 (2) of the
Protection of the Environment Administration Act 1991.
(2) Each of the principal objectives of the Corporation is of equal
importance.
6 Status of the Corporation (cf State Owned Corporations Act 1989, section 20F)
The Corporation or any of its subsidiaries:
(a) is not and does not represent the constituent councils or the State,
and
(b) is not exempt from any rate, tax, duty or other impost imposed by
or under any law of the State merely because it is the Corporation,
and
Page 5
Clause 7 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
(c) cannot render the constituent councils or the State liable for any
debts, liabilities or obligations of the Corporation or any of its
subsidiaries,
unless this or any other Act otherwise expressly provides.
7 Share capital, shares and shareholders (cf State Owned Corporations Act
1989, section 20H)
(1) The Corporation is to have a share capital and shares as provided in its
constitution.
(2) The shareholders are to be the constituent councils.
(3) Each shareholder must at all times have an equal number of shares in
the Corporation.
(4) Each shareholder must at all times be entitled to rights equal to those to
which the other shareholder is entitled.
8 Constitution of the Corporation (cf State Owned Corporations Act 1989,
section 20Q)
(1) The Corporation is to have a constitution.
(2) As far as practicable, the constitution of the Corporation is to have the
same operation and effect in relation to the Corporation as the
constitution of a company has in relation to the company.
(3) The voting shareholders are responsible for ensuring that the
constitution of the Corporation at all times contains provisions to the
effect of:
(a) those set out in Schedule 1, and
(b) such others as are prescribed by the regulations.
(4) The constitution of the Corporation may contain matters that, for a
company, would be found in the Corporations Act 2001 of the
Commonwealth.
(5) The constitution of the Corporation may make provision for or with
respect to the provision, form, custody and use of the seal of the
Corporation. Any such provisions have effect despite section 50 of the
Interpretation Act 1987.
(6) The constitution of the Corporation may contain provisions regarding
the manner of alteration or replacement of the constitution.
(7) The constitution of the Corporation may contain other provisions, so
long as they are not inconsistent with the provisions referred to in
subsection (3) or any other provisions of this Act or the regulations.
Page 6
Central Coast Water Corporation Bill 2006 Clause 9
Central Coast Water Corporation Part 2
9 Constitution of subsidiaries (cf State Owned Corporations Act 1989,
section 20R)
(1) The voting shareholders are responsible for ensuring that the
constitution of every subsidiary at all times contains provisions to the
effect of:
(a) those set out in Schedule 2, and
(b) such others as are prescribed by the regulations.
(2) The provisions of subsection (1) are declared to be Corporations
legislation displacement provisions for the purposes of section 5G of the
Corporations Act 2001 of the Commonwealth in relation to the
provisions of the Corporations legislation generally.
Note. Section 5G (9) of the Corporations Act 2001 of the Commonwealth
provides that if a provision of a law of a State or Territory provides that a
provision is included, or taken to be included, in a company's constitution, the
provision is included in the company's constitution even though the procedures
and other requirements of that Act are not complied with in relation to the
provision.
However, section 5G (3) of the Corporations Act 2001 of the Commonwealth
provides that section 5G will only apply to a provision of a law of a State or
Territory enacted after the commencement of that Act if a law of the State or
Territory declares the provision to be a Corporations legislation displacement
provision for the purposes of that section.
(3) The constitution of a subsidiary may contain other provisions, so long
as they are not inconsistent with the provisions referred to in subsection
(1) or any other provisions of this Act or the regulations.
10 Voting shareholders' agreement
(1) The constituent councils are to enter into an agreement as to the manner
in which their rights as voting shareholders are to be exercised.
(2) Such an agreement must make provision with respect to:
(a) the manner in which the voting shareholders are to make:
(i) any request referred to in section 2 (3) (c) or (8), and
(ii) any recommendation referred to in section 12 (3), and
(iii) any recommendation referred to in clause 2 (3) or 6 (2) of
Schedule 3, and
(b) the procedures to be followed to resolve any disputes in relation
to the exercise of the constituent councils' rights as voting
shareholders, and
(c) such other matters as are prescribed by the regulations.
Page 7
Clause 11 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
11 Application of Commonwealth Corporations Act 2001 (cf State Owned
Corporations Act 1989, section 20G)
(1) The Corporation is declared to be an excluded matter for the purposes
of section 5F of the Corporations Act 2001 of the Commonwealth in
relation to the whole of the Corporations legislation except to the extent
specified by the regulations for the purposes of this subsection.
Note. Section 5F of the Corporations Act 2001 of the Commonwealth provides
that if a State law declares a matter to be an excluded matter for the purposes
of that section in relation to all or part of the Corporations legislation of the
Commonwealth, then the provisions that are the subject of the declaration will
not apply in relation to that matter in the State concerned.
(2) The regulations may declare the Corporation, and any matter relating to
the Corporation (including the winding up of the Corporation), to be an
applied Corporations legislation matter for the purposes of Part 3 of the
Corporations (Ancillary Provisions) Act 2001 in relation to:
(a) the whole of the Corporations legislation, or
(b) an Act, regulations or other instrument forming part of the
Corporations legislation, or
(c) a provision or provisions of the Corporations legislation or of an
Act, regulations or other instrument forming part of the
Corporations legislation.
Note. Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the
application of provisions of the Corporations Act 2001 and Part 3 of the
Australian Securities and Investments Commission Act 2001 of the
Commonwealth as laws of the State in respect of any matter declared by a law
of the State (whether with or without modification) to be an applied Corporations
legislation matter for the purposes of that Part in relation to those
Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary
Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3
of that Act only operates to apply a provision of the Corporations legislation to
a matter as a law of the State if that provision does not already apply to the
matter as a law of the Commonwealth. If a provision referred to in a declaration
already applies as a law of the Commonwealth, nothing in the declaration will
affect its continued operation as a law of the Commonwealth.
(3) A provision of the Corporations legislation that is the subject of any
such declaration in the regulations has effect subject to the following
modifications:
(a) the provision applies as if the Corporation were a public company
and a company limited by shares,
(b) the provision applies as if shares in the Corporation held by the
voting shareholders were shares held in the Corporation as a
public company and a company limited by shares,
(c) such other modifications as may be prescribed by the regulations.
Page 8
Central Coast Water Corporation Bill 2006 Clause 12
Central Coast Water Corporation Part 2
(4) Without limiting subsections (2) and (3) (c), any such regulations:
(a) may specify modifications to the definitions and other
interpretative provisions of the Corporations legislation relevant
to any provision of the Commonwealth legislation that is the
subject of the declaration, and
(b) may provide for the Australian Securities and Investments
Commission (ASIC) to exercise a function under any provision
of the Corporations legislation that is the subject of the
declaration, but only if:
(i) ASIC is to exercise that function pursuant to an agreement
of the kind referred to in section 11 (8) or (9A) (b) of the
Australian Securities and Investments Commission Act
2001 of the Commonwealth, and
(ii) ASIC is authorised to exercise that function under section
11 of the Australian Securities and Investments
Commission Act 2001 of the Commonwealth, and
(c) may specify that a reference to ASIC in any provision of the
Corporations legislation that is the subject of the declaration is to
be read as a reference to another person, and
(d) may identify the provisions of the Corporations legislation to
which the declaration relates by reference to that legislation as in
force at a particular time, and
(e) may specify a court of this State (other than the Supreme Court)
to exercise any function conferred on a court or the Court by any
provision of the Corporations legislation to which the declaration
relates.
(5) Subsection (2) does not apply to any provision of the Corporations
legislation that applies to the Corporation as a law of the
Commonwealth.
(6) Words and expressions used in this section and also in Part 3 of the
Corporations (Ancillary Provisions) Act 2001 have the same meanings
as they have in that Part.
Division 2 Operation and management of the Corporation
12 Board of directors (cf State Owned Corporations Act 1989, section 20J)
(1) There is to be a board of directors of the Corporation.
(2) The Board is to consist of at least 3, but no more than 7, directors.
(3) The directors are to be appointed by the Governor on the
recommendation of the voting shareholders.
Page 9
Clause 13 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
(4) Each person recommended for appointment as a director must be a
person who, in the opinion of the voting shareholders, will assist the
Corporation to achieve its principal objectives.
(5) No more than 2 directors may be appointed from the councillors and
employees of the constituent councils (one from each council) and, in
that event, the minimum number of directors is to be 5 (not 3).
(6) The chief executive officer of the Corporation may, but need not, be
appointed as a director.
(7) The Board is accountable to the voting shareholders in the manner set
out in Part 4 and in the constitution of the Corporation.
(8) Schedule 3 has effect with respect to the constitution and procedure of
the Board.
13 Chief executive officer (cf Energy Services Corporations Act 1995, clause 2 of
Schedule 2)
(1) The chief executive officer of the Corporation is to be appointed by the
Board after consultation with the voting shareholders.
(2) Schedule 4 has effect with respect to the chief executive officer.
14 Operation and management (cf State Owned Corporations Act 1989,
section 20L)
(1) All decisions relating to the operation of the Corporation are to be made
by or under the authority of the Board.
(2) The chief executive officer of the Corporation is, subject to subsection
(1), responsible for the day-to-day management of the operation of the
Corporation in accordance with the general policies and specific
directions of the Board.
15 Staff (cf State Owned Corporations Act 1989, section 20M)
(1) The Corporation may employ such staff as it requires to exercise its
functions.
(2) The Corporation may fix the salary, wages and conditions of its staff in
so far as they are not fixed by or under any other Act or law.
(3) The regulations:
(a) subject to paragraph (b), may make provision for or with respect
to the employment of the staff of the Corporation, including the
conditions of employment and the discipline of any such staff,
and
Page 10
Central Coast Water Corporation Bill 2006 Clause 16
Central Coast Water Corporation Part 2
(b) must include provisions that have substantially the same effect in
relation to the staff of the Corporation as the provisions of Part 4
of Chapter 11, and sections 348350, of the Local Government
Act 1993 (provisions with respect to equal employment
opportunity and merit appointment) have in relation to the staff
of a council.
(4) Regulations relating to the conditions of employment or the discipline
of staff:
(a) have effect subject to any relevant award made by a competent
industrial tribunal and to any industrial agreement or enterprise
agreement to which the Corporation is a party, and
(b) have effect despite any determination of the Corporation under
subsection (2).
(5) Except as provided by the regulations, this section does not apply to the
appointment, employment or conditions of employment of the chief
executive officer of the Corporation.
(6) Except as provided by the regulations, this section applies to a
subsidiary of the Corporation (other than a company) and its staff in the
same way as it applies to the Corporation and its staff.
16 Non-commercial activities (cf State Owned Corporations Act 1989, section 20N)
(1) If the voting shareholders wish the Corporation to perform activities, or
to cease to perform activities, or not to perform activities, in
circumstances where the Board considers that it is not in the commercial
interests of the Corporation to do so, they may, by written notice to the
Board, direct the Corporation to do so in accordance with any
requirements set out or referred to in the notice.
(2) The Corporation is required to comply with any such direction.
(3) The Corporation is entitled to be reimbursed, from money advanced by
the constituent councils for the purpose, amounts equal to:
(a) the net cost of performing any such activities, including the cost
of capital, and
(b) the net cost of complying with a direction to cease to perform or
not to perform any such activities.
(4) The amounts and times of payment of those amounts are as agreed
between the constituent councils and the Corporation or (failing
agreement) as determined by a suitably qualified person or persons
nominated by the Minister.
Page 11
Clause 17 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
(5) The Corporation may be reimbursed, from money advanced by the
constituent councils for the purpose, amounts not exceeding the
estimated net amount of revenue forgone through ceasing to perform or
not performing any such activities, as determined by the constituent
councils having regard to such factors as they consider relevant in the
circumstances.
17 Power of voting shareholders to notify Board of council policies (cf State
Owned Corporations Act 1989, section 20O)
(1) The voting shareholders may notify the Board, in writing, of a policy
adopted by the constituent councils that is to apply to the Corporation
and its subsidiaries, if the voting shareholders are satisfied that it is
necessary to give the notification in the public interest.
(2) The Board must ensure that the policy is carried out in relation to the
Corporation and must, as far as practicable, ensure that the policy is
carried out in relation to its subsidiaries.
(3) Before giving a notification under this section, the voting shareholders:
(a) must consult with the Board, and
(b) must request the Board to advise the voting shareholders
whether, in its opinion, carrying out the policy would not be in
the best interests of the Corporation or any of its subsidiaries.
(4) The Corporation may be reimbursed, from money advanced by the
constituent councils for the purpose, amounts not exceeding the
estimated net cost of complying with such a notification, or the
estimated net amount of revenue forgone through complying with such
a notification, as determined by the voting shareholders having regard
to such factors as they consider relevant in the circumstances.
(5) The voting shareholders are required to cause a notice to be published
in the Gazette setting out the reasons why a notification was given under
this section and why it is in the public interest that the notification be
given.
(6) A notice referred to in subsection (5) is to be published within one
month after the notification is given.
18 Power of voting shareholders to give directions in public interest (cf
State Owned Corporations Act 1989, section 20P)
(1) The voting shareholders may give the Board a written direction in
relation to the Corporation and its subsidiaries if they are satisfied that,
because of exceptional circumstances, it is necessary to give the
direction in the public interest.
Page 12
Central Coast Water Corporation Bill 2006 Clause 19
Central Coast Water Corporation Part 2
(2) The Board must ensure that the direction is carried out in relation to the
Corporation and must, as far as practicable, ensure that the direction is
complied with in relation to its subsidiaries.
(3) Before giving a direction under this section, the voting shareholders:
(a) must consult with the Board, and
(b) must request the Board to advise the voting shareholders
whether, in its opinion, complying with the direction would not
be in the best interests of the Corporation or any of its
subsidiaries.
(4) The Corporation may be reimbursed, from money advanced by the
constituent councils for the purpose, amounts not exceeding the
estimated net cost of complying with such a direction, or the estimated
net amount of revenue forgone through complying with such a
direction, as determined by the voting shareholders having regard to
such factors as they consider relevant in the circumstances.
(5) The voting shareholders are required to cause a notice to be published
in the Gazette setting out the reasons why a direction was given under
this section and why it is in the public interest that the direction be
given.
(6) A notice referred to in subsection (5) is to be published within one
month after the direction is given.
19 Dividends (cf State Owned Corporations Act 1989, section 20S)
(1) The Corporation is to have a share dividend scheme, as provided in its
constitution, in a form approved by the constituent councils.
(2) The Board and the voting shareholders may agree that payments
required to be made by the Corporation or any of its subsidiaries in
respect of dividends will be applied in the purchase of shares by
shareholders in the Corporation.
(3) Dividends declared for the Corporation or any of its subsidiaries and
payable to voting shareholders are to be paid to the constituent councils.
20 Tax-equivalents (cf State Owned Corporations Act 1989, section 20T)
(1) The Corporation must from time to time pay to the constituent councils
such amounts as the Tax Assessor determines to be equivalent to the
amounts that would be payable by the Corporation if it were liable to
pay taxes under the law of the Commonwealth.
(2) The Corporation is not required to make payments under this section to
the extent to which it is or becomes liable to pay any such taxes.
Page 13
Clause 21 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
(3) Payments are to be made under this section on such terms as the Tax
Assessor determines to be equivalent to the terms on which the amounts
would be payable (including terms as to instalments and times of
payment) if the Corporation were liable to pay corresponding taxes
under the law of the Commonwealth.
(4) The Corporation and the constituent councils may enter into agreements
regarding the amounts to be paid under this section or the terms on
which they are to be paid, and any such agreements have effect despite
anything in subsections (1) and (3).
(5) The determinations of the Tax Assessor under this section are to be
made in such a way as to give effect to any such agreements.
(6) Any such determination of the Tax Assessor is final, and the constituent
councils and the Corporation are required to make all the necessary
payments and refunds to give effect to the determination.
(7) The Minister may nominate any person or persons to be the Tax
Assessor for the Corporation, and may revoke any such nomination.
(8) This section applies to the subsidiaries of the Corporation in the same
way as it applies to the Corporation, and (where relevant) applies to the
Corporation and its subsidiaries as a group.
(9) Amounts required to be paid under this section are called
tax-equivalents.
(10) In this section, Tax Assessor, in relation to the Corporation, means the
person nominated for the time being under subsection (7) as the Tax
Assessor for the Corporation.
21 Corporation's obligations not guaranteed by constituent councils (cf
State Owned Corporations Act 1989, section 20U)
(1) The obligations of the Corporation or any of its subsidiaries are not
guaranteed by the constituent councils, except to the extent to which the
Board and the constituent councils agree in writing.
(2) The constituent councils may, after consultation with the Board, fix
charges to be paid by the Corporation or any of its subsidiaries to the
constituent councils in respect of an agreed guarantee, either generally
or in so far as it relates to specified matters.
(3) Payments by the Corporation or any of its subsidiaries to the constituent
councils in respect of any such charges are required to be made at such
times, and in such instalments, as the constituent councils determine.
Page 14
Central Coast Water Corporation Bill 2006 Clause 22
Central Coast Water Corporation Part 2
22 State taxation (cf State Owned Corporations Act 1989, section 20V)
(1) In this section:
exempt matter means:
(a) the issue of shares of the Corporation or any of its subsidiaries to
the constituent councils, or
(b) the transfer of assets, rights or liabilities to the Corporation or any
of its subsidiaries pursuant to a transfer order, or
(c) giving effect to any of the above.
tax includes stamp duty and any other tax, duty, fee, levy or charge, but
does not include tax-equivalents.
(2) Tax under a law of the State is not payable in relation to:
(a) an exempt matter, or
(b) anything done (including, for example, a transaction entered into
or an instrument or document made, executed, lodged or given)
because of, or for a purpose connected with or arising out of, an
exempt matter.
(3) The Treasurer or a person authorised by the Treasurer may, by a written
instrument, certify that:
(a) a specified matter or thing is an exempt matter, or
(b) a specified thing was done (including, for example, a transaction
entered into or an instrument or document made, executed,
lodged or given) because of, or for a purpose connected with or
arising out of, a specified exempt matter.
(4) For all purposes and in all proceedings, a certificate under this section
is conclusive evidence of the matters certified, except so far as the
contrary is established.
23 Private corporations and subsidiaries (cf State Owned Corporations Act 1989,
section 20W)
(1) The Corporation may, subject to this section:
(a) form or participate in the formation of private corporations, and
(b) acquire interests in private corporations, and
(c) sell or otherwise dispose of interests in private corporations,
but only if the activities or proposed activities of any such private
corporation are related to the functions of the Corporation.
(2) The Corporation or any of its subsidiaries may not form, participate in
the formation of or acquire subsidiaries without the prior written
approval of the voting shareholders.
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Clause 24 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
(3) The Corporation or any of its subsidiaries may not acquire or dispose of
shares of a company, or participate in any other transaction, resulting in
the company becoming or ceasing to be a subsidiary, without the prior
written approval of the voting shareholders.
(4) In seeking the approval of the voting shareholders, the Corporation or
subsidiary is required to provide the voting shareholders with such
information as they require, including such kinds of information (if any)
as are prescribed by the regulations.
(5) In this section, private corporation means a corporation within the
meaning of the Corporations Act 2001 of the Commonwealth formed in
or outside New South Wales.
24 Acquisition and disposal of assets, investments and liabilities (cf State
Owned Corporations Act 1989, section 20X)
(1) The Corporation or any of its subsidiaries may not acquire or dispose of
fixed assets or investments, including shares in a company, without the
prior written approval of the voting shareholders:
(a) if the total assets and investments being acquired or disposed of
(together with any other such acquisitions or dispositions during
the last 12 months) represent an amount in excess of the
prescribed percentage of the written down value of the
Corporation's consolidated fixed assets and investments as
disclosed in its last audited financial report, or
(b) if it could reasonably be expected that the inclusion or exclusion,
respectively, of the total current year's profit or loss of such
acquisition or disposition (together with any other such
acquisitions or dispositions during that year) would result in an
increase in or diminution of the Corporation's consolidated
pre-tax operating profit or loss for the year of acquisition or
disposal in excess of the prescribed percentage compared with
that consolidated pre-tax operating profit or loss disclosed in its
last audited financial report.
(2) The amount referred to in subsection (1) (a) is to be calculated by
reference to:
(a) in the case of an acquisition to which this section applies, the cost
price of the asset or investment, or
(b) in the case of a disposition to which this section applies, the book
value of the consideration or disposal, whichever is the greater.
(3) The Corporation or any of its subsidiaries may not acquire or dispose of
any assets or liabilities, in contravention of any requirements of the
regulations.
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Central Coast Water Corporation Bill 2006 Clause 25
Central Coast Water Corporation Part 2
(4) In seeking the approval of the voting shareholders under this section, the
Corporation or subsidiary is required to provide the voting shareholders
with such information as they require, including such kinds of
information (if any) as are prescribed by the regulations.
(5) The prescribed percentage is 10 per cent or such other percentage as is
prescribed by the regulations.
(6) All or any specified requirements of subsections (1) and (2) do not apply
in such circumstances as are specified in a written notice given to the
Corporation or a subsidiary of the Corporation by the voting
shareholders.
(7) The voting shareholders may not give such a notice unless satisfied that
the requirements are incapable of application to the Corporation or
subsidiary in the circumstances or would apply to it in a clearly
inappropriate manner.
(8) The voting shareholders may, by written notice, direct the Corporation
or its subsidiaries not to dispose of any specified asset.
25 Sale or disposal of main undertaking (cf State Owned Corporations Act 1989,
section 20Y)
(1) None of the main undertakings of the Corporation, and none of the main
undertakings of any of its subsidiaries, may be sold or disposed of
except with the prior written approval of the voting shareholders.
(2) The main undertakings are as specified in the most recent statement of
corporate intent of the Corporation.
Division 3 Legal capacity and powers of the Corporation
26 Interpretation (cf State Owned Corporations Act 1989, section 20Z)
(1) In this Division:
officer of the Corporation means:
(a) a director of the Corporation, or
(b) the chief executive officer of the Corporation, or
(c) an employee of the Corporation.
restriction includes prohibition.
(2) In this Division:
(a) a reference to the doing of an act by the Corporation includes a
reference to the making of an agreement by the Corporation and
a reference to a transfer of property to or by the Corporation, and
(b) a reference to power includes a reference to legal capacity.
Page 17
Clause 27 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
27 Objects of Division (cf State Owned Corporations Act 1989, section 20ZA)
(1) The objects of this Division include:
(a) providing that the doctrine of ultra vires does not apply to the
Corporation, and
(b) ensuring that the Corporation gives effect to any restrictions on
its objects or powers, but without affecting the validity of its
dealings with outsiders.
(2) This Division is to be construed and have effect accordingly.
28 General powers of the Corporation (cf State Owned Corporations Act 1989,
section 20ZB)
(1) The Corporation has, for or in connection with the performance of its
functions, all the powers of a natural person, including for example, the
power:
(a) to enter into contracts, and
(b) to acquire, hold, dispose of and deal with property, and
(c) to appoint agents and attorneys, and
(d) to charge, and fix terms, for goods, services and information
supplied by it, and
(e) to engage consultants, and
(f) to do all other things necessary or convenient to be done for, or
in connection with, the performance of its functions.
(2) Without limiting subsection (1), the Corporation has the powers that are
conferred on it by or under this or any other Act.
(3) The Corporation may exercise its powers within or outside the State.
(4) Without limiting subsection (3), the Corporation may exercise its
powers outside Australia.
(5) The fact that the doing of an act by the Corporation would not be, or is
not, in its best interests does not affect its legal capacity to do the act.
29 Restrictions on the Corporation (cf State Owned Corporations Act 1989, section
20ZC)
(1) Section 28 has effect in relation to the Corporation subject to any
restrictions on the Corporation's powers expressly imposed by or under
this or any other Act.
(2) Section 28 also has effect in relation to the Corporation subject to any
restrictions expressly imposed by:
(a) the Corporation's constitution, or
Page 18
Central Coast Water Corporation Bill 2006 Clause 30
Central Coast Water Corporation Part 2
(b) any relevant statement of corporate intent of the Corporation, or
(c) any relevant directions, notifications or approvals given to the
Corporation by the voting shareholders.
(3) If the Corporation:
(a) exercises a power contrary to a restriction mentioned in
subsection (1) or (2), or
(b) does an act otherwise than in pursuance of its objects or functions
set out in this Act,
the Corporation contravenes this subsection.
(4) The exercise of the power mentioned in subsection (3) (a), or the act
mentioned in subsection (3) (b), is not invalid merely because of the
contravention.
(5) An officer of the Corporation who is involved in the contravention
contravenes this subsection.
(6) An act of the officer is not invalid merely because, by doing the act, the
officer contravenes subsection (5).
(7) The Corporation or officer of the Corporation is not guilty of an offence
merely because of the relevant contravention.
(8) The fact that:
(a) by exercising the power mentioned in subsection (3) (a), or doing
the act as mentioned in subsection (3) (b), the Corporation
contravened, or would contravene, subsection (3), or
(b) by doing a particular act, an officer of the Corporation
contravened, or would contravene, subsection (5),
may be asserted or relied on only in proceedings between the voting
shareholders and officers of the Corporation.
30 Persons having dealings with the Corporation or property (cf State
Owned Corporations Act 1989, section 20ZD)
(1) A person having dealings with the Corporation is entitled to make, in
relation to those dealings, the assumptions referred to in subsection (3).
In any proceedings relating to those dealings, any assertion by the
Corporation that the matters that the person is so entitled to assume were
not correct must be disregarded.
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Clause 30 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
(2) A person having dealings with another person (the apparent owner)
who has acquired or purports to have acquired title to property from the
Corporation (whether directly or indirectly) is entitled to make, in
relation to the acquisition or purported acquisition of title from the
Corporation, the assumptions referred to in subsection (3). In any
proceedings in relation to those dealings, any assertion by the
Corporation or by the apparent owner that the matters that the person is
so entitled to assume were not correct must be disregarded.
(3) The assumptions that a person is, because of subsection (1) or (2),
entitled to make are:
(a) that, at all relevant times, this Act has been complied with, and
(b) that, at all relevant times, the Corporation's constitution has been
complied with, and
(c) that a person who appears from publicly available information to
be a director, the chief executive officer or a secretary of the
Corporation has been duly appointed and has authority to
exercise the functions customarily exercised by a director, by the
chief executive officer or by a secretary, as the case may be, of a
body carrying on a business of the kind carried on by the
Corporation, and
(d) that a person who is held out by the Corporation to be an officer
or agent of the Corporation has been duly appointed and has
authority to exercise the functions customarily exercised by an
officer or agent of the kind concerned, and
(e) that an officer or agent of the Corporation who has authority to
issue a document on behalf of the Corporation has authority to
warrant that the document is genuine and that an officer or agent
of the 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, and
(f) that a document has been duly sealed by the Corporation if it
bears what appears to be an impression of a seal of the
Corporation and the sealing of the document appears to be
attested by a person who, because of paragraph (c), may be
assumed to be a director of the Corporation or the Corporation's
chief executive officer, and
(g) that the directors, chief executive officer, employees and agents
of the Corporation have properly performed their duties to the
Corporation.
Page 20
Central Coast Water Corporation Bill 2006 Clause 31
Central Coast Water Corporation Part 2
(4) This section does not entitle a person to make an assumption, and does
not prevent an assertion being made in relation to an assumption, if:
(a) the person has actual knowledge that the assumption is not
correct, or
(b) the person's connection or relationship with the Corporation is
such that the person ought to know that the assumption is not
correct.
(5) If, because of subsection (4), a person is not entitled to make a particular
assumption:
(a) if the assumption is in relation to dealings with the Corporation,
subsection (1) does not apply to any assertion by the Corporation
in relation to the assumption, or
(b) if the assumption is in relation to an acquisition or purported
acquisition from the Corporation of title to property, subsection
(2) does not apply to any assertion by the Corporation or another
person in relation to the assumption.
31 Effect of fraud (cf State Owned Corporations Act 1989, section 20ZE)
(1) A person's entitlement under this Division to make an assumption is not
affected merely by the fact that any person:
(a) has acted or is acting fraudulently in relation to the dealing or
acquisition or purported acquisition of title to property to which
the assumption relates, or
(b) has forged a document that appears to have been sealed on behalf
of the Corporation.
(2) However, the person is not entitled to make the assumption if the person
has actual knowledge of that fraudulent action or forgery.
Division 4 Transfer of staff, assets, rights and liabilities
32 Transfer of staff, assets, rights and liabilities (cf State Water Corporation Act
2004, section 10)
(1) A constituent council may, by order in writing, transfer to the
Corporation such of its staff as are specified or referred to in the order.
(2) The Minister may, by order in writing, transfer to the Corporation such
of a constituent council's assets, rights and liabilities as are specified or
referred to in the order.
(3) A transfer order under subsection (2) may not be made unless the
relevant constituent council has consented to the transfer.
Page 21
Clause 32 Central Coast Water Corporation Bill 2006
Part 2 Central Coast Water Corporation
(4) Such consent is required only in respect of:
(a) a transfer order made during the period of 3 years commencing
on the day on which section 4 commences, or
(b) if the Minister, by order in writing, extends that period, a transfer
order made during that period as so extended.
(5) The period of 3 years referred to in subsection (4) (a) may be extended
to no more than 5 years by an order under subsection (4) (b).
(6) The fee simple in land that comprises the bed of any river, lake or
estuary is not to be transferred to the Corporation under this section
unless the Minister administering the Crown Lands Act 1989 has been
consulted in relation to the transfer.
(7) Subsection (6) does not prevent the transfer to the Corporation of the
ownership of any works installed in or on the bed of any river, lake or
estuary.
(8) An order under this section may be made on such terms and conditions
as are specified or referred to in the order.
(9) Schedule 5 applies to any transfer of staff, assets, rights or liabilities
under this section.
Page 22
Central Coast Water Corporation Bill 2006 Clause 33
Operating licences Part 3
Part 3 Operating licences
33 Grant of operating licence (cf State Water Corporation Act 2004, section 11)
(1) The Minister may grant an operating licence to the Corporation to
enable the Corporation, in accordance with this Act, to carry out its
functions including, in particular, such functions with respect to:
(a) the provision of water supply or sewage management services, or
(b) the construction, maintenance or operation of water supply
works, sewage works or drainage works,
as are delegated to it by the constituent councils or as are exercisable by
it in its capacity as a water supply authority.
(2) Except to the extent to which this Act expressly provides, nothing in an
operating licence limits the requirements imposed by or under any other
Act or law with respect to the functions referred to in subsection (1) (a)
and (b).
34 Terms and conditions of operating licences (cf Sydney Water Act 1994,
section 14)
(1) An operating licence is subject to the terms and conditions determined
by the Minister, which must include terms or conditions under which
the Corporation:
(a) is required to ensure that its water supply and sewage
management services meet the quality and performance
standards specified in the operating licence in relation to water
quality, service interruptions, pricing and other matters
determined by the Minister and set out in the operating licence,
and
(b) is required to belong to an industry ombudsman scheme approved
by the Minister for the purposes of this Act, and
(c) is required to compile indicators of the direct impact on the
environment of the Corporation's activities:
(i) to enable preparation of an annual report on the
Corporation's performance, and
(ii) to provide information for a year to year comparison in
relation to the Corporation's performance in this area.
(2) The terms and conditions of the operating licence are to make provision
for the preparation of operational audits by IPART.
(3) The regulations may make provision for or with respect to the
establishment and operation of the industry ombudsman scheme
referred to in subsection (1) (b).
Page 23
Clause 35 Central Coast Water Corporation Bill 2006
Part 3 Operating licences
(4) Nothing in this section enables an operating licence to authorise or
require the Corporation:
(a) to construct, operate, manage or maintain water supply or sewage
management works, or
(b) to provide water supply and sewage management services, or
(c) to provide, operate, manage or maintain a stormwater drainage
system,
on, or for the benefit of, land situated outside its area of operations.
(5) While the Corporation is a water supply authority:
(a) its exercise of functions under the Water Management Act 2000
is subject to the terms and conditions of its operating licence, and
(b) its exercise of functions under its operating licence is not limited
by section 293 (2) of that Act, and
(c) it is not subject to section 294 of that Act.
35 Amendment of operating licence
(1) The Minister may amend or substitute the Corporation's operating
licence or impose, amend or revoke conditions of the operating licence.
(2) The Minister is to consult with the Corporation before taking action
under subsection (1).
36 Term of operating licence (cf Sydney Water Act 1994, section 17)
(1) The initial term of the Corporation's operating licence is to be for a
maximum of 2 years, as determined by the Minister.
(2) After the initial term, the Minister may renew the Corporation's
operating licence for a maximum of 5 years at a time.
(3) The operating licence may be renewed even if its term has expired.
37 Annual licence fees
The Minister may, as a condition of the Corporation's operating licence,
require the Corporation to pay to the Minister, for payment into the
Consolidated Fund, such annual licence fee as may be determined by
the Minister.
38 Area covered by operating licence (cf Sydney Water Act 1994, section 18)
The Corporation's operating licence applies to the area comprising the
local government areas of each of the constituent councils.
Page 24
Central Coast Water Corporation Bill 2006 Clause 39
Operating licences Part 3
39 Contravention of operating licence (cf Sydney Water Act 1994, section 19)
(1) If, in the opinion of the Minister, the Corporation contravenes its
operating licence, the Minister may cause a notice to be served on the
Corporation requiring it to rectify the contravention within a specified
period.
(2) If, in the opinion of the Minister, the Corporation contravenes its
operating licence, and whether or not a notice has been served under
subsection (1) or the period specified in the notice has ended, the
Minister may direct that either of the following is to apply:
(a) a letter of reprimand is to be served on the Corporation,
(b) the Corporation is to pay a monetary penalty (not exceeding
$1 million) in an amount to be determined by the Minister.
(3) The fact that the Minister has directed that action be taken under this
section does not prevent the Minister directing that the same or other
action under this section be taken if the contravention continues or a
fresh contravention occurs.
(4) The operating licence may make provision for advice to be furnished to
the Minister in connection with the exercise of the Minister's functions
under this section.
(5) A penalty imposed under this section may be recovered in any court of
competent jurisdiction as if it were a debt due to the Crown.
40 Enforcement of operating licence by IPART (cf Sydney Water Act 1994,
section 19A)
(1) IPART may impose a monetary penalty on the Corporation.
(2) IPART may, instead of imposing a monetary penalty, require the
Corporation to take such action as IPART considers appropriate in the
circumstances, including (for example) requiring the sending of
information to customers or the publication of notices in newspapers.
(3) IPART may not require action to be taken under subsection (2) by the
Corporation if the cost of that action would exceed the monetary penalty
that IPART could impose under this section on the Corporation.
(4) If IPART requires information to be sent to a customer under subsection
(2), the Corporation may satisfy that requirement by sending the
information to the customer with the next account or bill to be sent to
the customer by the Corporation or, if the Corporation is sending other
information to that customer before the next account or bill, with that
other information.
(5) Action may be taken under this section only if the Corporation has
knowingly contravened its operating licence.
Page 25
Clause 41 Central Coast Water Corporation Bill 2006
Part 3 Operating licences
(6) The monetary penalty that IPART may impose under this section must
not exceed $500,000 for the first day on which the contravention occurs
and a further $20,000 for each subsequent day (not exceeding 25 days)
on which the contravention continues.
(7) IPART must not take action under this section unless:
(a) IPART has considered whether the contravention has been or is
likely to be the subject of any other penalty or action or any claim
for compensation, and is satisfied that it is nevertheless
appropriate to take action under this section, and
(b) IPART has considered the action that the Corporation has taken
or is likely to take in respect of the contravention and the cost to
the Corporation in taking that action, and is satisfied that it is
nevertheless appropriate to take action under this section.
(8) IPART is required to consider the seriousness of the contravention
concerned in determining whether to impose a monetary penalty under
this section.
(9) IPART must not take action under this section unless:
(a) notice of the proposed action has been given to the Corporation,
and
(b) the Corporation has been given a reasonable opportunity to make
submissions with respect to the proposed action, and
(c) IPART has given due consideration to any such submissions.
(10) IPART must not take action under this section in respect of a
contravention if any action has already been taken under section 39 in
respect of the contravention.
(11) Nothing in this section affects any powers under section 39 in respect of
a contravention, whether or not IPART has already taken action under
this section in respect of the contravention.
(12) A penalty imposed under this section may be recovered in any court of
competent jurisdiction as if it were a debt due to the Crown.
41 Cancellation of operating licence (cf Sydney Water Act 1994, section 20)
(1) The Corporation's operating licence may be cancelled by the Minister,
but only if:
(a) the Corporation for any reason ceases, otherwise than as
authorised by the operating licence, to do the things referred to in
section 33 (1) (a) or (b), or any of them, in its area of operations,
or
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Central Coast Water Corporation Bill 2006 Clause 41
Operating licences Part 3
(b) the Corporation:
(i) is, in the opinion of the Minister, in material default in
compliance with the operating licence, viewed in terms of
the operation of the operating licence as a whole, and
(ii) has not, within the time specified by the Minister in a
notice to the Corporation, either rectified the default or
shown cause, to the satisfaction of the Minister, why the
operating licence should not be cancelled, or
(c) the Corporation is an externally-administered body corporate
within the meaning of the Corporations Act 2001 of the
Commonwealth, or
(d) the Corporation has been convicted on more than 3 occasions
within a period of 12 months of offences that are punishable by a
fine of at least $10,000 or, if the Corporation were a natural
person, imprisonment for 12 months or more.
(2) A notice under section 39 can be regarded also as a notice for the
purposes of subsection (1) (b).
(3) If the Corporation's operating licence is cancelled under this section,
the Minister may, by order in writing, transfer to either or both of the
constituent councils any specified staff, assets, rights or liabilities of the
Corporation that, in the opinion of the Minister, are necessary to enable
the Corporation's functions, or any of them, to continue to be done.
(4) Schedule 5 applies to any transfer of staff, assets, rights or liabilities
under this section.
Page 27
Clause 42 Central Coast Water Corporation Bill 2006
Part 4 Accountability
Part 4 Accountability
42 Statement of corporate intent: timetable and procedure (cf State Owned
Corporations Act 1989, section 21)
(1) The Board must prepare and submit to the voting shareholders a draft
written statement of corporate intent not later than one month after the
commencement of each financial year.
(2) The Board must consider any comments on the draft statement of
corporate intent that are made to it by the voting shareholders within
2 months after the commencement of the financial year.
(3) The Board must consult in good faith with the voting shareholders
following communication to it of the comments, make such changes to
the statement as are agreed between the voting shareholders and the
Board and deliver the completed written statement to the voting
shareholders within 3 months after the commencement of the financial
year.
(4) The statement may not, before it is laid before both Houses of
Parliament, be published or made available to the public without the
prior approval of the Board and the voting shareholders.
(5) The statement may be modified at any time by the Board with the
agreement of the voting shareholders.
(6) If the Board, by written notice to the voting shareholders, proposes a
modification of the statement, the Board may, within 14 days, make the
modification unless the voting shareholders, by written notice to the
Board, direct the Board not to make it.
(7) The voting shareholders may, from time to time, by written notice to the
Board, direct the Board to include in, or omit from, a statement of
corporate intent any specified matters.
(8) Before giving a direction under this section, the voting shareholders are
to consult with the Board as to the matters to be referred to in the notice.
(9) The Corporation is required to comply with any such direction.
(10) At any particular time, the statement of corporate intent for the
Corporation is the completed statement, with any modifications or
deletions made in accordance with this Part.
Page 28
Central Coast Water Corporation Bill 2006 Clause 43
Accountability Part 4
43 Statement of corporate intent: contents (cf State Owned Corporations Act
1989, section 22)
Each statement of corporate intent is required to specify for the group
comprising the Corporation and its subsidiaries, in respect of the
financial year to which it relates and each of the 2 following financial
years, the following information:
(a) the objectives of the Corporation and of its subsidiaries,
(b) the main undertakings of the Corporation and of its subsidiaries,
(c) the nature and scope of the activities to be undertaken,
(d) the accounting policies to be applied in the financial reports of the
Corporation and of its subsidiaries,
(e) the performance targets and other measures by which the
performance of the Corporation and of its subsidiaries may be
judged in relation to their stated objectives,
(f) the kind of information to be provided to the voting shareholders
by the Corporation during the course of those financial years,
including the information to be included in each half-yearly and
annual report,
(g) such other matters as may be agreed on by the voting
shareholders and the Board from time to time.
44 Half-yearly reports (cf State Owned Corporations Act 1989, section 23)
(1) Within one month after the end of the first 6 months of each financial
year (or such other period after the end of that half-year as may be
agreed on by the Board and the voting shareholders), the Board is
required to deliver to the voting shareholders a report of the operations
of the Corporation and of its subsidiaries during that half-year.
(2) Each report required by this section must include the information
required by the statement of corporate intent to be included in it.
45 Annual reports and financial reports
(1) The provisions of Divisions 2 and 3 of Part 3 of Chapter 13 of the Local
Government Act 1993 apply to and in respect of the Corporation in the
same way as they apply to and in respect of a council.
(2) Within 5 months after the end of each financial year, the Corporation
must prepare a report as to its achievements with respect to the
objectives and performance targets set out in its statement of corporate
intent in relation to that year.
Page 29
Clause 46 Central Coast Water Corporation Bill 2006
Part 4 Accountability
(3) Each annual report is to include a section that:
(a) identifies any actual departures from those performance targets,
and
(b) sets out the reasons for each of those departures.
(4) Copies of the Corporation's annual report must be furnished to the
Minister and to such other persons and bodies as are required by the
regulations to be furnished with the report.
46 Special reports of Auditor-General (cf State Owned Corporations Act 1989,
section 25)
(1) The Auditor-General may make a special report regarding any matter
arising from audit which in the opinion of the Auditor-General should
be brought to the attention of Parliament.
(2) The Auditor-General is required to present any such special report to the
Legislative Assembly.
47 Information to be laid before Parliament (cf State Owned Corporations Act
1989, section 26)
(1) The Minister is required to lay, or cause to be laid, the following before
each House of Parliament:
(a) a copy of the constitution of the Corporation, within 14 sitting
days after the date of the constitution or the date on which the
Corporation came into being (whichever is the later),
(b) a copy of the constitution of each subsidiary of the Corporation,
within 14 sitting days after the date of the constitution or the date
on which the subsidiary became a subsidiary of the Corporation
(whichever is the later),
(c) a copy of any change to the constitution of the Corporation or any
of its subsidiaries, within 14 sitting days after the date of the
change,
(d) a copy of the completed statement of corporate intent for the
Corporation, within 14 sitting days after the date the voting
shareholders received it,
(e) a copy of any modification to a completed statement of corporate
intent for the Corporation made after a copy of the statement was
laid before the House, within 14 sitting days after the date the
modification was made,
(f) a copy of any notice given under section 42 (6) directing the
Board not to make a modification of a statement of corporate
intent, within 14 sitting days after the date the notice was given,
Page 30
Central Coast Water Corporation Bill 2006 Clause 47
Accountability Part 4
(g) a copy of any notice given under section 42 (7) directing the
inclusion of matters in or the omission of matters from a
statement of corporate intent, within 14 sitting days after the date
the notice was given,
(h) a copy of each half-yearly and annual report of the Corporation,
within 14 sitting days after the date the voting shareholders
received it,
(i) a copy of any notice given by the voting shareholders under the
constitution of the Corporation to the Board as to the amount of
a dividend, within 14 sitting days after the date the notice was
given,
(j) a copy of any written approval given by the voting shareholders
under section 23, 24 or 25, within 14 sitting days after the date the
approval was given,
(k) a copy of any notice given by the voting shareholders under
section 24 (6), within 14 sitting days after the date the notice was
given,
(l) a copy of any written instrument under section 22 (3), within
14 sitting days after the date the instrument was signed,
(m) a copy of any written direction under clause 12 of Schedule 6,
within 14 sitting days after the direction was given.
(2) The material referred to in subsection (1) relating to a statement of
corporate intent must be accompanied by a statement as to whether or
not the statement of corporate intent embodies any changes made to the
description of the main undertakings of the Corporation or its
subsidiaries.
(3) Before copies of material referred to in subsection (1) (d) or (e) relating
to a statement of corporate intent are laid before the Houses of
Parliament, the voting shareholders may delete any information of a
commercially sensitive nature.
(4) The material referred to in subsection (1) (j) relating to an approval
given under section 25 need not be laid before the Houses of Parliament
so far as the approval relates to a transaction between any members of
a group comprising the Corporation and its subsidiaries.
(5) The Corporation must ensure that the material referred to in subsection
(1) is made available to the Minister in time to enable the Minister to
comply with the requirements of that subsection.
(6) Compliance with subsection (5) is a condition of the Corporation's
operating licence.
Page 31
Clause 48 Central Coast Water Corporation Bill 2006
Part 4 Accountability
48 Procedure if Parliament not in session (cf State Owned Corporations Act
1989, section 27)
(1) If a House of Parliament is not sitting when the Minister seeks to
comply with any of the requirements of section 47, the Minister is
required to present a copy of the material to the Clerk of the House.
(2) If the Legislative Assembly is not sitting when the Auditor-General
seeks to comply with any of the requirements of section 46, the
Auditor-General is required to present a copy of the special report to the
Clerk of the Legislative Assembly.
(3) Material presented to the Clerk under this section:
(a) on presentation and for all purposes, is taken to have been laid
before the House of Parliament, and
(b) is required to be printed by authority of the Clerk if it is a
half-yearly or annual report of the Corporation, and
(c) may be printed by authority of the Clerk if it is material other than
such a report, and
(d) if printed by authority of the Clerk, is for all purposes taken to be
a document published by order or under the authority of the
House, and
(e) is to be recorded in the Minutes, or Votes and Proceedings, of the
House on the first sitting day of the House after receipt of the
material by the Clerk.
49 Other information to be supplied (cf State Owned Corporations Act 1989,
section 29)
The Board must supply to the voting shareholders such information
relating to the affairs of the Corporation or any of its subsidiaries as they
from time to time request (whether or not the information is of a kind
referred to in the statement of corporate intent).
50 Application of this Part where no subsidiaries (cf State Owned Corporations
Act 1989, section 30)
If any provision of this Part is expressed to apply to the Corporation and
its subsidiaries (or a group comprising the Corporation and its
subsidiaries), the provision also applies to the Corporation if it has no
subsidiaries.
Page 32
Central Coast Water Corporation Bill 2006 Clause 51
Independent Pricing and Regulatory Tribunal Part 5
Part 5 Independent Pricing and Regulatory Tribunal
51 Regulatory functions of IPART
(1) The regulatory functions of IPART under this Act are as follows:
(a) the function of making recommendations under subsection (2),
(b) the function of monitoring and reporting under subsection (3),
(c) the auditing functions of IPART under subsection (4),
(d) the function of determining an operating licence fee (if any),
(e) the function of imposing monetary penalties or requiring other
action to be taken under section 40,
(f) such other functions of IPART under this Act as are specified by
the regulations for the purposes of this section.
(2) IPART has the function of making recommendations to the Minister for
or with respect to:
(a) the granting, amendment or cancellation of the Corporation's
operating licence, and
(b) the imposition, amendment or cancellation of conditions in
relation to the Corporation's operating licence, and
(c) action to be taken, and sanctions to be applied, in respect of a
contravention of the Corporation's operating licence, and
(d) remedial action that may be warranted as a result of a
contravention of the Corporation's operating licence.
(3) IPART has the function of monitoring and reporting to the Minister on
compliance by the Corporation with its operating licence.
(4) IPART has such functions as may be conferred or imposed on it by the
Corporation's operating licence in connection with operational audits of
the Corporation.
52 Operational and other audits
(1) IPART is to prepare operational audits of the Corporation at the times
directed by the Minister.
(2) The Minister may direct IPART to prepare the Corporation's
operational audit of specified matters only.
(3) IPART is to ensure that each operational audit of the Corporation is
prepared in accordance with the Corporation's operating licence.
Page 33
Clause 53 Central Coast Water Corporation Bill 2006
Part 6 Miscellaneous
Part 6 Miscellaneous
53 Act binds Crown (cf State Owned Corporations Act 1989, section 31)
This Act binds the Crown.
54 Operation of Act (cf State Owned Corporations Act 1989, section 33)
(1) A requirement of this Act that provisions be included in the constitution
of a company does not have effect to the extent to which the requirement
or the provisions are inconsistent with a law of the Commonwealth.
(2) A requirement of this Act that provisions be inserted in the constitution
of a company does not have effect to the extent to which the requirement
or the provisions are inconsistent with a law of a place (other than New
South Wales), if the company is a subsidiary of the Corporation and the
company is or is to be incorporated under the law of that place.
55 Duties and liabilities of directors and other officers (cf State Owned
Corporations Act 1989, section 33A)
(1) Schedule 6 has effect.
(2) The regulations may amend or replace Schedule 6.
(3) Any such regulations:
(a) may confer jurisdiction on courts in relation to the duties and
liabilities of directors and officers and associated matters, and
(b) may impose penalties not exceeding 500 penalty units or
imprisonment not exceeding 5 years, or both.
56 Liability of directors and other officers in respect of particular
obligations (cf State Owned Corporations Act 1989, section 33AA)
(1) This section applies to the obligation of the Board to supply information
requested of the Board under section 49.
(2) A director of the Corporation does not, despite any other law, incur any
personal liability for the compliance, or purported compliance, in good
faith by the Board with an obligation to which this section applies.
(3) An officer of the Corporation does not, despite any other law, incur any
personal liability for his or her compliance, or purported compliance, in
good faith with a direction or decision given or made by or on behalf of
the Board for the purpose of complying with an obligation to which this
section applies.
(4) This section does not affect any other protection that a director or other
officer would have for compliance, or purported compliance, with such
an obligation.
Page 34
Central Coast Water Corporation Bill 2006 Clause 57
Miscellaneous Part 6
(5) In this section, officer of the Corporation means:
(a) a director of the Corporation, or
(b) the Corporation's chief executive officer, or
(c) any other person who is concerned, or takes part, in the
Corporation's management.
57 Offences (cf State Owned Corporations Act 1989, section 33B)
(1) Proceedings for an offence against this Act or the regulations are to be
disposed of summarily before:
(a) a Local Court, or
(b) the Supreme Court in its summary jurisdiction.
(2) The maximum penalty that may be imposed by a Local Court for an
offence against this Act or the regulations is 50 penalty units or
imprisonment for 12 months, or both.
58 Application of Public Finance and Audit Act 1983 (cf State Owned
Corporations Act 1989, section 35A)
The Public Finance and Audit Act 1983 does not apply in relation to the
Corporation or any of its subsidiaries.
59 Application of Independent Commission Against Corruption Act 1988
(cf State Owned Corporations Act 1989, section 36)
For the purposes of the Independent Commission Against Corruption
Act 1988:
(a) the Corporation and its subsidiaries are public authorities, and
(b) directors, officers and employees of the Corporation, or of its
subsidiaries, are public officials.
60 Regulations (cf State Owned Corporations Act 1989, section 38)
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) The regulations may create offences punishable by a penalty not
exceeding 50 penalty units (in the case of an individual) and 100 penalty
units (in any other case).
61 Amendment of other Acts
The Acts specified in Schedule 7 are amended as set out in that
Schedule.
Page 35
Clause 62 Central Coast Water Corporation Bill 2006
Part 6 Miscellaneous
62 Savings and transitional provisions (cf State Owned Corporations Act 1989,
section 39)
Schedule 8 has effect.
63 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
Page 36
Central Coast Water Corporation Bill 2006
Provisions for inclusion in constitution of the Corporation Schedule 1
Schedule 1 Provisions for inclusion in constitution
of the Corporation
(Section 8)
(cf State Owned Corporations Act 1989, Schedule 6)
Provisions to the effect of the following provisions are to be included in the
constitution of the Corporation. Words and expressions used in these provisions have
the same meanings as in the Central Coast Water Corporation Act 2006.
1 Entrenchment
The constitution may not be altered or added to in a way that is
inconsistent with the provisions in Schedule 1 to the Central Coast
Water Corporation Act 2006, unless and until resolutions approving the
alteration or addition have been passed by each of the constituent
councils within the meaning of that Act.
2 Act to prevail
(1) The provisions of the Central Coast Water Corporation Act 2006
prevail over any inconsistent provisions of the constitution of the
Corporation.
(2) The Corporation is expressly prohibited from exercising any of its
powers in contravention of any requirement of or under section 24 or 25
of the Central Coast Water Corporation Act 2006.
3 Shareholders
(1) Only the constituent councils may hold shares in the Corporation's
issued share capital.
(2) A shareholder may not sell or otherwise dispose of shares in the
Corporation.
(3) The Board is accountable to the voting shareholders in the manner set
out in Part 4 of the Central Coast Water Corporation Act 2006 and in
the constitution of the Corporation.
(4) The Corporation may issue further shares to shareholders, but no
shareholder is obliged to acquire any such further shares.
(5) Only the voting shareholders may cast votes.
(6) The voting shareholders must at all times have an equal number of
shares and be in a position to cast an equal number of votes.
Page 37
Central Coast Water Corporation Bill 2006
Schedule 1 Provisions for inclusion in constitution of the Corporation
4 Subsidiaries
(1) The Corporation may not form, participate in the formation of or
acquire subsidiaries without the prior written approval of the voting
shareholders.
(2) The Corporation must ensure that the constitutions of its subsidiaries at
all times contain provisions to the effect of those required by Schedule 2
to the Central Coast Water Corporation Act 2006.
(3) The Corporation must, to the maximum extent practicable, ensure that
every subsidiary complies with its constitution (if any) and with the
requirements of the Central Coast Water Corporation Act 2006.
Page 38
Central Coast Water Corporation Bill 2006
Provisions for inclusion in constitutions of subsidiaries Schedule 2
Schedule 2 Provisions for inclusion in constitutions
of subsidiaries
(Section 9)
(cf State Owned Corporations Act 1989, Schedule 7)
Provisions to the effect of the following provisions are to be included in the
constitution of each subsidiary of the Corporation. Words and expressions used in
these provisions have the same meanings as in the Central Coast Water Corporation
Act 2006.
1 Entrenchment
The constitution may not be altered or added to in a way that is
inconsistent with the provisions in Schedule 2 to the Central Coast
Water Corporation Act 2006, unless and until resolutions approving the
alteration or addition have been passed by both Houses of Parliament.
2 Act to prevail
(1) The provisions of the Central Coast Water Corporation Act 2006
prevail over any inconsistent provisions of the constitution of the
subsidiary.
(2) The subsidiary is expressly prohibited from exercising any power of the
subsidiary in contravention of any requirement of or under section 24 or
25 of the Central Coast Water Corporation Act 2006.
3 Shareholders
(1) A shareholder that is a constituent council may not sell or otherwise
dispose of shares in the subsidiary otherwise than to the Corporation or
a subsidiary of the Corporation.
(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.
(3) The board of the subsidiary is accountable to the voting shareholders in
the manner set out in Part 4 of the Central Coast Water Corporation Act
2006 and in the constitution of the subsidiary.
(4) The subsidiary may issue further shares to its shareholders, but no
shareholder is obliged to acquire any such further shares.
(5) Shares may not be issued or transferred except with the prior written
approval of the voting shareholders of the Corporation.
Page 39
Central Coast Water Corporation Bill 2006
Schedule 2 Provisions for inclusion in constitutions of subsidiaries
4 Subsidiaries
(1) The subsidiary may not form, participate in the formation of or acquire
subsidiaries without the prior written approval of the voting
shareholders of the Corporation.
(2) The subsidiary must ensure that the constitutions of each of its
subsidiaries at all times contain provisions to the effect of those required
by Schedule 2 to the Central Coast Water Corporation Act 2006.
(3) The subsidiary must, to the maximum extent practicable, ensure that
each of its subsidiaries complies with its constitution (if any) and with
the requirements of the Central Coast Water Corporation Act 2006.
5 Exercise of certain functions restricted to Corporation's area of
operations
The subsidiary may not:
(a) construct, operate, manage or maintain water supply or sewage
management works, or
(b) provide water supply and sewage management services, or
(c) provide, operate, manage or maintain a stormwater drainage
system,
on, or for the benefit of, land situated outside the Corporation's area of
operations.
Page 40
Central Coast Water Corporation Bill 2006
Constitution and procedure of Board Schedule 3
Schedule 3 Constitution and procedure of Board
(Section 12)
(cf State Owned Corporations Act 1989, Schedule 8)
1 Application of this Schedule
(1) This Schedule applies in relation to the Board.
(2) This Schedule applies only to the extent to which the constitution of the
Corporation does not make provision for any matter dealt with in this
Schedule. However, the constitution cannot override clause 4 or 6.
2 Chairperson
(1) Of the directors of the Corporation, one is (in and by the director's
instrument of appointment as director or in and by another instrument
executed by the Governor) to be appointed as Chairperson of the Board.
(2) Such an appointment is to be made on the recommendation of the
Minister following consultation with the voting shareholders.
(3) The Governor, on the recommendation of the voting shareholders, may
remove a director from the office of Chairperson of the Board at any
time for any or no reason and without notice.
(4) A person who is a director and Chairperson of the Board vacates office
as Chairperson in the circumstances set out in the constitution of the
Corporation or if the person:
(a) is removed from that office under this clause, or
(b) resigns that office by letter addressed to the voting shareholders,
or
(c) ceases to be a director of the Corporation.
3 Deputies
(1) The voting shareholders may, from time to time, appoint a person to be
the deputy of a director of the Corporation, and the voting shareholders
may revoke any such appointment.
(2) A director's deputy may not be appointed from the councillors or
employees of a constituent council unless the director was so appointed,
as referred to in section 12 (5).
(3) In the absence of a director, the director's deputy:
(a) is, if available, to act in the place of the director, and
(b) while so acting, has all the functions of the director and is taken
to be a director of the Corporation.
Page 41
Central Coast Water Corporation Bill 2006
Schedule 3 Constitution and procedure of Board
(4) The deputy of a director who is Chairperson of the Board does not have
the director's functions as Chairperson, unless the constitution of the
Corporation provides for this to happen.
(5) A person while acting in the place of a director is entitled to be paid such
remuneration (including travelling and subsistence allowances) as the
voting shareholders may from time to time determine in respect of the
person.
4 Term of office of directors
Subject to this Schedule, a director of the Corporation holds office for
such period (not exceeding 5 years) as may be specified in the director's
instrument of appointment.
5 Remuneration
A director of the Corporation is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the voting
shareholders may from time to time determine.
6 Vacancy in office of director
(1) The office of a director of the Corporation becomes vacant in the
circumstances set out in the constitution of the Corporation or if the
director:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by letter addressed to the voting shareholders,
or
(d) is removed from office by the Governor under this clause or
under Chapter 5 of the Public Sector Employment and
Management Act 2002, or
(e) is absent from 4 consecutive meetings of the Board of which
reasonable notice has been given to the director personally or in
the ordinary course of post, except on leave granted by the Board
or unless, before the end of 4 weeks after the last of those
meetings, the director is excused by the Board for having been
absent from those meetings, or
(f) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for
their benefit, or
(g) becomes a mentally incapacitated person, or
Page 42
Central Coast Water Corporation Bill 2006
Constitution and procedure of Board Schedule 3
(h) is convicted in New South Wales of an offence that is punishable
by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if
committed in New South Wales, would be an offence so
punishable.
(2) The Governor, on the recommendation of the voting shareholders, may
remove a director of the Corporation from office at any time for any or
no reason and without notice.
7 Filling of vacancy
If the office of a director of the Corporation becomes vacant, a person
is, subject to this Act and the constitution of the Corporation, to be
appointed to fill the vacancy.
8 Effect of certain other Acts
(1) The Public Sector Employment and Management Act 2002 does not
apply to the appointment of a director of the Corporation. A director is
not, as a director, subject to that Act (except Chapter 5).
(2) For the purposes of Chapter 5 of the Public Sector Employment and
Management Act 2002:
(a) the position of director of the Corporation is taken to be a
statutory office, and
(b) in relation only to section 118 (7) of that Act, the Corporation is
taken to be a State owned corporation.
(3) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the
duties of that office,
the provision does not operate to disqualify the person from holding that
office and also the office of a director or from accepting any
remuneration payable to the person under this Act as such a director.
9 General procedure
The procedure for the calling of meetings of the Board and for the
conduct of business at those meetings is, subject to this Act, the
regulations and the constitution of the Corporation, to be as determined
by the Board.
Page 43
Central Coast Water Corporation Bill 2006
Schedule 3 Constitution and procedure of Board
10 Quorum
The quorum for a meeting of the Board is, subject to the constitution of
the Corporation, a majority of the directors for the time being.
11 Presiding director
(1) The Chairperson of the Board or, in the absence of the Chairperson,
another director elected to chair the meeting by the directors present is
(subject to the constitution of the Corporation) to preside at a meeting
of the Board.
(2) The person presiding at any meeting of the Board has (in accordance
with the constitution of the Corporation) a deliberative vote and, in the
event of an equality of votes, has a second or casting vote.
12 Voting
A decision supported by a majority of the votes cast at a meeting of the
Board at which a quorum is present is (subject to the constitution of the
Corporation) the decision of the Board.
13 Transaction of business otherwise than at ordinary meetings
(1) The Board may, if it thinks fit, transact any of its business by the
circulation of papers among all the directors of the Board for the time
being. A resolution approved in writing by a majority of the directors is
taken to be a decision of the Board.
(2) The Board may, if it thinks fit, transact any of its business at a meeting
at which directors (or some directors) participate by telephone,
closed-circuit television or other means, but only if any director who
speaks on a matter before the meeting can be heard by the other
directors.
(3) For the purposes of:
(a) the approval of a resolution under subclause (1), or
(b) a meeting held in accordance with subclause (2),
the Chairperson and other directors have the same voting rights as they
have at an ordinary meeting of the Board.
(4) A resolution approved under subclause (1) is, subject to the regulations
and the constitution of the Corporation, to be recorded in the minutes of
the meetings of the Board.
(5) Papers may be circulated among directors for the purposes of subclause
(1) by fax or other transmission of the information in the papers
concerned.
Page 44
Central Coast Water Corporation Bill 2006
Constitution and procedure of Board Schedule 3
14 First meeting
The voting shareholders may call the first meeting of the Board in such
manner as they think fit.
Page 45
Central Coast Water Corporation Bill 2006
Schedule 4 Chief executive officer
Schedule 4 Chief executive officer
(Section 13)
(cf State Owned Corporations Act 1989, Schedule 9)
1 Term of office
Subject to this Schedule, the chief executive officer holds office for
such period (not exceeding 5 years) as may be specified in the chief
executive officer's instrument of appointment.
2 Conditions of employment
The Board may, after consultation with the voting shareholders, fix the
conditions of employment of the chief executive officer in so far as they
are not fixed by or under any other Act or law.
3 Remuneration
The chief executive officer is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the Board may
determine.
4 Performance agreements
The Board may require the chief executive officer to enter into
performance agreements.
5 Acting chief executive officer
(1) The Board may, from time to time, appoint a person to act in the office
of chief executive officer during the illness or absence of the chief
executive officer. The person, while so acting, has all the functions of
the chief executive officer and is taken to be the chief executive officer.
(2) The Board may remove a person from the office to which the person
was appointed under this clause, at any time for any or no reason and
without notice.
(3) A person while acting in the office of chief executive officer is entitled
to be paid such remuneration (including travelling and subsistence
allowances) as the Board may from time to time determine in respect of
the person.
(4) For the purposes of this clause, a vacancy in the office of chief executive
officer is regarded as an absence from office of the chief executive
officer.
Page 46
Central Coast Water Corporation Bill 2006
Chief executive officer Schedule 4
6 Removal from office
The voting shareholders may remove a person from office as chief
executive officer, at any time, for any or no reason and without notice,
but only on the recommendation of the Board.
7 Effect of certain other Acts
(1) The Public Sector Employment and Management Act 2002 does not
apply to the appointment of the chief executive officer, and the chief
executive officer is not subject to that Act (except Chapter 5).
(2) For the purposes of Chapter 5 of the Public Sector Employment and
Management Act 2002:
(a) the position of chief executive officer is taken to be a statutory
office, and
(b) in relation only to section 118 (7) of that Act, the Corporation is
taken to be a State owned corporation.
Page 47
Central Coast Water Corporation Bill 2006
Schedule 5 Transfer of staff, assets, rights and liabilities
Schedule 5 Transfer of staff, assets, rights and
liabilities
(Sections 32 and 41)
Part 1 Preliminary
1 Application and interpretation
(1) This Schedule applies to any transfer of staff, assets, rights or liabilities
pursuant to a transfer order.
(2) In this Schedule:
(a) the person or body from which any staff, assets, rights or
liabilities are transferred is called the transferor, and
(b) the person or body to which any staff, assets, rights or liabilities
are transferred is called the transferee.
2 Date of transfer
A transfer order takes effect on the date specified in the order.
3 Confirmation of transfer
(1) The Minister may, by notice in writing, confirm a transfer of particular
assets, rights or liabilities.
(2) Such a notice is conclusive evidence of that transfer.
Part 2 Transfers of staff
4 Transfers generally
Transferred staff are regarded for all purposes as having become
employees of the transferee, in accordance with the terms of the order,
on the day specified in the order as being the day on which the transfer
takes effect.
5 General saving of conditions of employment
Transferred staff are (until other provision is duly made under any Act
or law) to be continued to be employed in accordance with any awards,
agreements and determinations, and subject to any conditions, that
would have applied to them had they not been transferred but instead
remained as members of the staff of the transferor.
Page 48
Central Coast Water Corporation Bill 2006
Transfer of staff, assets, rights and liabilities Schedule 5
6 Saving of leave
Transferred staff retain any rights to annual leave, extended service
leave, sick leave, and other forms of leave, accrued or accruing in their
employment with the transferor.
7 No payment out on transfer or dual benefits
(1) Transferred staff are not entitled to receive any payment or other benefit
merely because they cease to be members of staff of the transferor.
(2) Transferred staff are not entitled to claim, both under this Act and under
any other Act, dual benefits of the same kind for the same period of
service.
8 Security of employment and right of return
(1) This clause applies to staff who are transferred to the Corporation from
a constituent council pursuant to a transfer order under section 32 (1)
(eligible employees).
(2) The employment of an eligible employee must not be terminated on the
grounds of redundancy during the period of 3 years following the date
of the transfer except with the employee's agreement.
(3) An eligible employee may, within the period of 3 years following the
date of the transfer, apply for a position in the constituent council as if
the employee were still an employee of that council.
(4) An eligible employee who applies for such a position, or who is
appointed to or employed in such a position, is, for the purposes of the
Local Government Act 1993, the Government and Related Employees
Appeal Tribunal Act 1980 and the Industrial Relations Act 1996, to be
taken to be an employee of the council in relation to the application,
appointment or employment.
(5) There is no right of appeal under the Government and Related
Employees Appeal Tribunal Act 1980:
(a) for a person against the filling of a position in the organisation
structure of the council by an eligible employee, or
(b) for an eligible employee against the filling of a position in the
organisation structure of the council by another person.
Page 49
Central Coast Water Corporation Bill 2006
Schedule 5 Transfer of staff, assets, rights and liabilities
Part 3 Transfers of assets, rights and liabilities
9 Vesting of undertaking in transferee
(1) When any assets, rights or liabilities are transferred, the following
provisions have effect:
(a) the assets of the transferor vest in the transferee by virtue of this
clause and without the need for any further conveyance, transfer,
assignment or assurance,
(b) the rights or liabilities of the transferor become by virtue of this
clause the rights or liabilities of the transferee,
(c) all proceedings relating to the assets, rights or liabilities
commenced before the transfer by or against the transferor or a
predecessor of the transferor and pending immediately before the
transfer are taken to be proceedings pending by or against the
transferee,
(d) any act, matter or thing done or omitted to be done in relation to
the assets, rights or liabilities before the transfer by, to or in
respect of the transferor or a predecessor of the transferor is (to
the extent to which that act, matter or thing has any force or
effect) taken to have been done or omitted by, to or in respect of
the transferee,
(e) a reference in any Act, in any instrument made under any Act or
in any document of any kind to:
(i) the transferor, or
(ii) any predecessor of the transferor,
to the extent to which the reference relates to those assets, rights
or liabilities, is taken to be, or include, a reference to the
transferee.
(2) The operation of this Schedule is not to be regarded:
(a) as a breach of contract or confidence or otherwise as a civil
wrong, or
(b) as a breach of any contractual provision prohibiting, restricting or
regulating the assignment or transfer of assets, rights or
liabilities, or
(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, or
(d) as an event of default under any contract or other instrument.
Page 50
Central Coast Water Corporation Bill 2006
Transfer of staff, assets, rights and liabilities Schedule 5
(3) No attornment to the transferee by a lessee from the transferor is
required.
(4) A transfer is subject to the terms and conditions of the order by which it
is effected.
10 No compensation payable
No compensation is payable to any person or body in connection with a
transfer except to the extent (if any) to which the order giving rise to the
transfer so provides.
11 Transfer of interests in land
(1) A transfer order may transfer an interest in respect of land vested in the
transferor without transferring the whole of the interests of the
transferor in that land.
(2) If the interest transferred is not a separate interest, the order operates to
create the interest transferred in such terms as are specified in the order.
(3) This clause does not limit any other provision of this Act.
12 Consideration for vesting
The Minister may, by order in writing, specify the consideration on
which a transfer is made and the value or values at which the assets,
rights or liabilities are transferred.
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Central Coast Water Corporation Bill 2006
Schedule 6 Duties and liabilities of directors and other officers
Schedule 6 Duties and liabilities of directors and
other officers
(Section 55)
(cf State Owned Corporations Act 1989, Schedule 10)
1 Disclosure of interests by directors
(1) If a director of the Corporation has a direct or indirect interest in a
matter being considered, or about to be considered, by the Board, the
director must disclose the nature of the interest to a meeting of the Board
as soon as practicable after the relevant facts come to the director's
knowledge.
Maximum penalty: 100 penalty units.
(2) The disclosure must be recorded in the minutes of the Board's meetings.
2 Voting by interested director
(1) A director of the Corporation who has a material personal interest in a
matter that is being considered by the Board must not:
(a) vote on the matter, or
(b) vote on a proposed resolution (a related resolution) under
subclause (2) in relation to the matter (whether in relation to the
director or another director), or
(c) be present while the matter, or a related resolution, is being
considered by the Board, or
(d) otherwise take part in any decision of the Board in relation to the
matter or a related resolution.
Maximum penalty: 100 penalty units.
(2) Subclause (1) does not apply to the matter if the Board has at any time
passed a resolution that:
(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.
(3) In determining whether a quorum is present at a meeting of the Board
during a consideration of such a matter by the Board, only those
directors are regarded as present who are entitled to vote on any motion
that may be moved in relation to the matter.
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Duties and liabilities of directors and other officers Schedule 6
(4) The voting shareholders may, by each signing consent to a proposed
resolution, deal with a matter if the Board cannot deal with it because of
subclause (3).
3 Duty and liability of certain officers of the Corporation
(1) In this clause:
officer of the Corporation means:
(a) a director of the Corporation, or
(b) the Corporation's chief executive officer, or
(c) another person who is concerned, or takes part, in the
Corporation's management.
(2) An officer of the Corporation must act honestly in the exercise of
powers, and discharge of functions, as an officer of the Corporation.
Maximum penalty:
(a) if the contravention is committed with intent to deceive or
defraud the Corporation, creditors of the Corporation or creditors
of another person or for another fraudulent purpose--500 penalty
units or imprisonment for 5 years, or
(b) in any other case--100 penalty units.
(3) In the exercise of powers and the discharge of functions, an officer of
the Corporation must exercise the degree of care and diligence that a
reasonable person in a like position in the Corporation would exercise
in the Corporation's circumstances.
Maximum penalty: 100 penalty units.
(4) An officer of the Corporation, or a person who has been an officer of the
Corporation, must not make improper use of information acquired
because of his or her position as an officer of the Corporation:
(a) to gain, directly or indirectly, an advantage for himself or herself
or for another person, or
(b) to cause detriment to the Corporation.
Maximum penalty: 500 penalty units or imprisonment for 5 years.
(5) An officer of the Corporation must not make improper use of his or her
position as an officer of the Corporation:
(a) to gain, directly or indirectly, an advantage for himself or herself
or another person, or
(b) to cause detriment to the Corporation.
Maximum penalty: 500 penalty units or imprisonment for 5 years.
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Schedule 6 Duties and liabilities of directors and other officers
(6) If a person contravenes this clause in relation to the Corporation, the
Corporation may recover from the person as a debt due to the
Corporation:
(a) if the person or another person made a profit because of the
contravention--an amount equal to the profit, and
(b) if the Corporation suffered loss or damage because of the
contravention--an amount equal to the loss or damage.
(7) An amount may be recovered from the person under subclause (6)
whether or not the person has been convicted of an offence in relation
to the contravention.
(8) Subclause (6) is in addition to, and does not limit, the Confiscation of
Proceeds of Crime Act 1989.
(9) In determining for the purposes of subclause (3) the degree of care and
diligence that a reasonable person in a like position in the Corporation
would exercise in the circumstances of the Corporation concerned,
regard must be had to:
(a) the fact that the person is an officer of the Corporation, and
(b) the application of this Act to the Corporation, and
(c) relevant matters required or permitted to be done under this Act
in relation to the Corporation,
including, for example, any relevant directions, notifications or
approvals given to the Corporation by the Corporation's voting
shareholders or constituent councils.
(10) Subclause (9) does not limit the matters to which regard may be had for
the purposes of subclause (3).
(11) This clause:
(a) is in addition to, and does not limit, any rule of law relating to the
duty or liability of a person because of the person's office in
relation to a corporation, and
(b) does not prevent civil proceedings being instituted for a breach of
the duty or the liability.
4 Prohibition on loans to directors
(1) The Corporation must not, whether directly or indirectly:
(a) make a loan to a director, a spouse of a director or a relative of a
director or spouse, or
(b) give a guarantee or provide security in connection with a loan
made to a director, a spouse of a director or a relative of a director
or spouse.
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Duties and liabilities of directors and other officers Schedule 6
(2) Subclause (1) does not apply to the entering into by the Corporation of
an instrument with a person mentioned in subclause (1) if the instrument
is entered into on the same terms as similar instruments (if any) are
entered into by the Corporation with members of the public.
(3) A director of the Corporation who is knowingly concerned in a
contravention of subclause (1) by the Corporation (whether or not in
relation to the director) commits an offence.
Maximum penalty: 100 penalty units.
(4) In this clause:
relative means:
(a) a parent or remoter lineal ancestor, or
(b) a son, daughter or remoter issue, or
(c) a brother or sister.
5 Corporation not to indemnify officers
(1) The Corporation must not:
(a) indemnify a person who is or has been an officer of the
Corporation against a liability incurred as an officer, or
(b) exempt a person who is or has been an officer of the Corporation
from a liability incurred as an officer.
(2) An instrument is void so far as it provides for the Corporation to do
something that subclause (1) prohibits.
(3) Subclause (1) does not prevent the Corporation from indemnifying a
person against civil liability (other than a liability to the Corporation or
a subsidiary of the Corporation) unless the liability arises out of conduct
involving a lack of good faith.
(4) Subclause (1) does not prevent the Corporation from indemnifying a
person against a liability for costs and expenses incurred by the person:
(a) in defending a proceeding, whether civil or criminal, in which
judgment is given in favour of the person or in which the person
is acquitted, or
(b) in connection with an application in relation to a proceeding in
which relief is granted to the person by a court.
(5) The Corporation may give an indemnity mentioned in subclause (3) or
(4) only with the prior approval of the voting shareholders.
(6) In this clause:
indemnify includes indemnify indirectly through one or more
interposed entities.
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Schedule 6 Duties and liabilities of directors and other officers
officer of the Corporation means:
(a) a director of the Corporation, or
(b) the Corporation's chief executive officer, or
(c) another person who is concerned, or takes part, in the
Corporation's management.
6 Corporation not to pay premiums for certain liabilities of officers
(1) The Corporation must not pay, or agree to pay, a premium in relation to
a contract insuring a person who is or has been an officer of the
Corporation against a liability:
(a) incurred by the person as an officer, and
(b) arising out of conduct involving:
(i) a wilful breach of duty in relation to the Corporation, or
(ii) without limiting subparagraph (i), a contravention of
clause 3 (4) or (5).
(2) Subclause (1) does not apply to a liability for costs and expenses
incurred by a person in defending proceedings, whether civil or
criminal, and whatever their outcome.
(3) An instrument is void so far as it insures a person against a liability in
contravention of subclause (1).
(4) In this clause:
officer of the Corporation means:
(a) a director of the Corporation, or
(b) the Corporation's chief executive officer, or
(c) another person who is concerned, or takes part, in the
Corporation's management.
pay includes pay indirectly through one or more interposed entities.
7 Director's duty to prevent insolvent trading
(1) If:
(a) immediately before the Corporation incurs a debt:
(i) there are reasonable grounds to suspect that the
Corporation will not be able to pay all its debts as and
when they become due, or
(ii) there are reasonable grounds to suspect that, if the
Corporation incurs the debt, it will not be able to pay all its
debts as and when they become due, and
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Duties and liabilities of directors and other officers Schedule 6
(b) the Corporation is, or later becomes, unable to pay all its debts as
and when they become due,
a person who is a director of the Corporation, or takes part in the
Corporation's management, at the time when the debt is incurred
commits an offence.
Maximum penalty: 100 penalty units or imprisonment for 1 year.
(2) In a proceeding against a person for an offence against this clause, it is
a defence if it is proved:
(a) that the debt was incurred without the person's express or implied
authority or consent, or
(b) that, at the time when the debt was incurred, the person did not
have reasonable cause to suspect:
(i) that the Corporation would not be able to pay all its debts
as and when they became due, or
(ii) that, if the Corporation incurred that debt, it would not be
able to pay all its debts as and when they became due, or
(c) that the person took all reasonable steps to prevent the
Corporation from incurring the debt, or
(d) in the case of a director--that the person did not take part at the
time in the Corporation's management because of illness or for
some other good cause.
8 Court may order compensation
(1) If a person is found guilty of an offence against clause 7 (Director's duty
to prevent insolvent trading) in relation to the incurring of a debt by the
Corporation, the Supreme Court may declare that the person is to be
personally responsible without any limitation of liability for the
payment to the Corporation of the amount required to satisfy the part of
the Corporation's debts that the Court considers proper.
(2) This clause does not affect any rights of a person to indemnity,
subrogation or contribution.
(3) This clause:
(a) is in addition to, and does not limit, any rule of law about the duty
or liability of a person because of the person's office in relation
to a corporation, and
(b) does not prevent proceedings being instituted for a breach of the
duty or the liability.
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Schedule 6 Duties and liabilities of directors and other officers
9 Examination of persons concerned with Corporation
(1) If it appears to the Attorney General that:
(a) a person who has been concerned, or taken part, in the
Corporation's management, administration or affairs has been, or
may have been, guilty of fraud, negligence, default, breach of
trust or breach of duty or other misconduct in relation to the
Corporation, or
(b) a person may be capable of giving information in relation to the
Corporation's management, administration or affairs,
the Attorney General may apply to the Supreme Court or the District
Court for an order under this clause in relation to the person.
(2) The court may order that the person attend before the court at a time and
place fixed by the court to be examined on oath on any matters relating
to the Corporation's management, administration or affairs.
(3) The examination of the person is to be held in public except so far as the
court considers that, because of special circumstances, it is desirable to
hold the examination in private.
(4) The court may give directions about:
(a) the matters to be inquired into at the examination, and
(b) the procedures to be followed at the examination (including, if
the examination is to be held in private, the persons who may be
present).
(5) The person must not fail, without reasonable excuse:
(a) to attend as required by the order, or
(b) to continue to attend as required by the court until the completion
of the examination.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(6) The person must not fail to take an oath or make an affirmation at the
examination.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(7) The person must not fail to answer a question that the person is directed
by the court to answer.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(8) The person may be directed by the court (whether in the order or by
subsequent direction) to produce any document in the person's
possession, or under the person's control, relevant to the matters on
which the person is to be, or is being, examined.
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Duties and liabilities of directors and other officers Schedule 6
(9) The person must not, without reasonable excuse, contravene a direction
under subclause (8).
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(10) If the court directs the person to produce a document and the person has
a lien on the document, the production of the document does not
prejudice the lien.
(11) The person must not knowingly make a statement at the examination
that is false or misleading in a material particular.
Maximum penalty: 500 penalty units or imprisonment for 5 years.
(12) The person is not excused from answering a question put to the person
at the examination on the ground that the answer might tend to
incriminate the person or make the person liable to a penalty.
(13) If:
(a) before answering a question put to the person at the examination,
the person claims that the answer might tend to incriminate the
person or make the person liable to a penalty, and
(b) the answer might in fact tend to incriminate the person or make
the person liable to a penalty,
the answer is not admissible in evidence against the person in:
(c) a criminal proceeding, or
(d) a proceeding for the imposition of a penalty,
other than a proceeding for an offence against this clause or another
proceeding in relation to the falsity of the answer.
(14) The court may order the questions put to the person and the answers
given by the person at the examination to be recorded in writing and
may require the person to sign the record.
(15) Subject to subclause (13), any written record of the examination signed
by the person, or any transcript of the examination that is authenticated
by the signature of the examiner, may be used in evidence in any legal
proceeding against the person.
(16) The person may, at his or her own expense, employ counsel or a
solicitor, and the counsel or solicitor may put to the person questions
that the court considers just for the purpose of enabling the person to
explain or qualify any answers given by the person.
(17) The court may adjourn the examination from time to time.
(18) If the court is satisfied that the order for the examination of the person
was obtained without reasonable cause, the court may order the whole
or any part of the costs incurred by the person be paid by the State.
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Schedule 6 Duties and liabilities of directors and other officers
10 Power to grant relief
(1) This clause applies to a director, the chief executive officer or an
employee of the Corporation.
(2) If, in a proceeding against a person to whom this clause applies for
negligence, default, breach of trust or breach of duty as a person to
whom this clause applies, it appears to the court that:
(a) the person is or may be liable for the negligence, default or
breach, but
(b) the person has acted honestly and, having regard to all the
circumstances of the case (including circumstances connected
with the person's appointment) the person ought fairly to be
excused for the negligence, default or breach,
the court may relieve the person (in whole or part) from liability on
terms that the court considers appropriate.
(3) If a person to whom this clause applies believes that a claim will or
might be made against the person for negligence, default, breach of trust
or breach of duty as a person to whom this clause applies, the person
may apply to the Supreme Court or the District Court for relief.
(4) The court has the same power to relieve the person as it would have if a
proceeding had been brought against the person in the court for the
negligence, default or breach.
(5) If:
(a) a proceeding mentioned in subclause (2) is being tried by a Judge
with a jury, and
(b) the Judge, after hearing the evidence, is satisfied that the
defendant ought under that subclause be relieved (in whole or
part) from the liability sought to be enforced against the person,
the Judge may withdraw the case (in whole or part) from the jury and
direct that judgment be entered for the defendant on the terms (as to
costs or otherwise) that the Judge considers appropriate.
11 False or misleading information or documents
(1) In this clause:
officer of the Corporation means:
(a) a director of the Corporation, or
(b) the Corporation's chief executive officer, or
(c) an employee of the Corporation.
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Duties and liabilities of directors and other officers Schedule 6
(2) An officer of the Corporation must not:
(a) make a statement concerning the affairs of the Corporation to
another officer or the voting shareholders that the first officer
knows is false or misleading in a material particular, or
(b) omit from a statement concerning the Corporation's affairs made
to another officer or the voting shareholders anything without
which the statement is, to the first officer's knowledge,
misleading in a material particular.
(3) An information or complaint against a person for an offence against
subclause (2) (a) or (b) is sufficient if it states that the information given
was false or misleading to the person's knowledge.
(4) An officer of the Corporation must not give to another officer or the
voting shareholders a document containing information that the first
officer knows is false, misleading or incomplete in a material particular
without:
(a) indicating to the recipient that the document is false, misleading
or incomplete and the respect in which the document is false,
misleading or incomplete, and
(b) giving the correct information to the recipient if the first officer
has, or can reasonably obtain, the correct information.
Maximum penalty:
(a) if the contravention is committed with intent to deceive or
defraud the Corporation, creditors of the Corporation or creditors
of another person or for another fraudulent purpose--500 penalty
units or imprisonment for 5 years, or
(b) in any other case--100 penalty units.
12 Notice of suspected insolvency otherwise than because of direction or
notification
(1) If:
(a) the Board suspects that the Corporation or a subsidiary of the
Corporation is, may be, will or may become insolvent, and
(b) in the Board's opinion, compliance with a direction or
notification given by the voting shareholders is not or would not
be the cause or a substantial cause of the suspected insolvency,
the Board must immediately give written notice to the voting
shareholders of:
(c) the suspicion, and
(d) its reasons for the opinion.
(2) The notice must state that it is given under this clause.
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Schedule 6 Duties and liabilities of directors and other officers
(3) If the voting shareholders are satisfied that the Board's suspicion is
well-founded, the voting shareholders must immediately give the Board
the written directions that the voting shareholders consider necessary or
desirable, including any directions necessary or desirable to ensure:
(a) that the Corporation or subsidiary does not incur further debts, or
(b) that the Corporation or subsidiary will be able to pay all its debts
as and when they become due.
(4) Without limiting subclause (3), a direction under this clause may
require the Corporation or any of its subsidiaries to cease or limit
particular activities.
(5) The Board must ensure that a direction under this clause is complied
with in relation to the Corporation and must, as far as practicable, ensure
that it is complied with in relation to its subsidiaries.
(6) This clause is in addition to, and does not limit, another provision of this
Act or another law.
13 Application of Corporations Act 2001 of the Commonwealth to officers
of Corporation subsidiaries
(1) In determining for the purposes of the Corporations Act 2001 of the
Commonwealth the degree of care and diligence that a reasonable
person in a like position in a subsidiary of the Corporation would
exercise in the circumstances of the subsidiary concerned, regard must
be had to:
(a) the application of this Act to the Corporation and subsidiary, and
(b) relevant matters required or permitted to be done under this Act
in relation to the Corporation and subsidiary,
including, for example, any relevant directions, notifications or
approvals given to the Corporation by the Corporation's voting
shareholders or constituent councils.
(2) This section has effect despite the Corporations Act 2001 of the
Commonwealth.
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Amendment of other Acts Schedule 7
Schedule 7 Amendment of other Acts
(Section 61)
7.1 Independent Pricing and Regulatory Tribunal Act 1992 No 39
[1] Section 3 Definitions
Insert ", water supply authority" after "state owned corporation" in the
definition of government agency in section 3 (1).
[2] Section 3 (1)
Insert in alphabetical order:
water supply authority has the same meaning as it has in the
Water Management Act 2000.
[3] Section 24F Regulatory functions of Tribunal
Insert after section 24F (d):
(d1) section 51 of the Central Coast Water Corporation Act
2006, and
[4] Section 24FC Licence auditing functions of Tribunal
Insert after section 24FC (1) (c):
(c1) its functions in connection with operational audits under
section 52 of the Central Coast Water Corporation Act
2006, and
[5] Schedule 1 Government agencies for which Tribunal has standing
reference
Omit "constituted under the Water Management Act 2000" from the matter
relating to water supply authorities.
7.2 Water Management Act 2000 No 92
[1] Section 286 Constitution of water supply authorities
Insert after section 286 (5):
(6) The Governor may, by proclamation published in the Gazette,
omit the name of a water supply authority from Part 4 of
Schedule 3.
(7) The regulations may make provision of a savings or transitional
nature consequent on a proclamation under subsection (6).
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Central Coast Water Corporation Bill 2006
Schedule 7 Amendment of other Acts
[2] Schedule 3 Water supply authorities
Omit the following from Part 2 of Schedule 3:
Gosford City Council
Wyong Council
[3] Schedule 3, Part 3
Omit "Australian Inland Energy Water Infrastructure".
Insert instead "Country Energy".
[4] Schedule 3, Part 4
Insert after Part 3 of Schedule 3:
Part 4 Council owned corporations
Central Coast Water Corporation
Page 64
Central Coast Water Corporation Bill 2006
Savings, transitional and other provisions Schedule 8
Schedule 8 Savings, transitional and other
provisions
(Section 62)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication 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 an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Previous acts, matters or things
(1) Any act, matter or thing that, before the Corporation became a water
supply authority, had been done by either of the constituent councils, in
its capacity as a water supply authority, continues to have effect as if it
had been done by the Corporation.
(2) Subject to any restrictions imposed by or under this or any other Act, the
Corporation may vary or revoke any act, matter or thing so continued.
3 Existing development applications and other matters
(1) This clause applies to development or an activity relating to:
(a) buildings, works or other infrastructure transferred to the
Corporation from the constituent councils under this Act, or
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Schedule 8 Savings, transitional and other provisions
(b) a function conferred on the Corporation under this Act that was,
immediately before its conferral, conferred on a constituent
council.
(2) A development application relating to a matter referred to in subclause
(1) that, before the date on which:
(a) the relevant building, work or other infrastructure was transferred
to the Corporation, or
(b) the relevant function was conferred on the Corporation,
had been made by a constituent council under the Environmental
Planning and Assessment Act 1979, but had not been finally
determined, is taken to have been made by the Corporation.
(3) An environmental impact statement relating to a matter referred to in
subclause (1) that, before the date on which:
(a) the relevant building, work or other infrastructure was transferred
to the Corporation, or
(b) the relevant function was conferred on the Corporation,
had been prepared by a constituent council under the Environmental
Planning and Assessment Act 1979, but had not been considered, is
taken to have been prepared by the Corporation.
4 Licences and other authorisations
(1) This clause applies to an authorisation granted to a constituent council
under any of the following Acts or under a regulation under any of those
Acts, and in force immediately before the commencement of this
clause:
(a) the Environmental Planning and Assessment Act 1979,
(b) the Occupational Health and Safety Act 2000,
(c) the Protection of the Environment Operations Act 1997,
(d) the Water Act 1912,
(e) the Water Management Act 2000,
(f) any other Act prescribed by the regulations.
(2) An authorisation is, to the extent that it relates to transferred functions
or assets, taken to be held by the Corporation on the same terms and
conditions as the constituent council held the authorisation immediately
before the commencement of this clause.
(3) The regulations may exempt an authorisation from the operation of this
clause.
(4) Nothing in this clause prevents an authorisation from being varied,
cancelled or replaced.
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Savings, transitional and other provisions Schedule 8
(5) In this clause:
authorisation includes a licence, permit or approval.
transferred functions or assets means functions conferred on, or assets,
rights or liabilities vested in, the Corporation by or under this Act, that
were, immediately before the conferral or vesting, conferred on, or
vested in, the Ministerial Corporation, the State or a public or local
authority.
5 Deemed licences and approvals
(1) For the purposes of Part 9 of the Water Act 1912, the Corporation is
taken, at the time of transfer, to have been granted a water management
licence under section 188 of that Act, for each water management work
transferred to the Corporation by or under this Act (a deemed water
management licence).
(2) A deemed water management licence does not authorise the
Corporation to take and use water from any water source.
(3) The Ministerial Corporation is not required to comply with section
189 (3) of the Water Act 1912 in relation to any condition that it imposes
on a deemed water management licence within 6 months after the date
that the licence is taken to have been granted.
(4) If water management works are transferred to the Corporation by or
under this Act, the Corporation is taken on the date of the transfer to
have been granted all relevant approvals under Part 3 of Chapter 3 of the
Water Management Act 2000 required to allow the Corporation to use
those works in accordance with the Corporation's functions (a deemed
approval).
(5) A deemed approval is subject to the provisions of the Water
Management Act 2000 as if the approval had been granted under
Division 2 of Part 3 of Chapter 3 of that Act at the time of the transfer
of the relevant water management works, and accordingly it may be
subjected to conditions, suspended or cancelled in accordance with that
Act.
(6) The Minister administering the Water Management Act 2000 is not
required to comply with section 102 (1) of that Act in relation to any
discretionary condition imposed on a deemed approval within 6 months
after the date that the approval is taken to have been granted.
(7) Part 5 of the Environmental Planning and Assessment Act 1979 does not
apply to or in respect of a deemed water management licence or a
deemed approval.
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Schedule 8 Savings, transitional and other provisions
(8) The Corporation is taken to hold any other licence or approval
necessary under the Water Management Act 2000 or the Water Act 1912
to allow it to take and use water in the exercise of its functions.
(9) Any licence or approval under subclause (8) is taken to have effect for
a period of 12 months commencing on the date of commencement of
this clause or for such longer period as may be prescribed by the
regulations.
6 Continuation of certain IPART determinations
The regulations may, in either unmodified or in modified form, apply to
the Corporation, on and from the date on which it becomes a water
supply authority, any pricing determination that, immediately before
that date, applied to either or both of the constituent councils in their
capacity as water supply authorities.
7 Security of employment for staff of constituent councils
(1) The employment of any member of staff of a constituent council (other
than a senior staff member within the meaning of the Local Government
Act 1993) must not be terminated on the grounds of redundacy arising
from:
(a) the exercise by the Corporation of functions formerly exercised
by the council, or
(b) the proposed exercise by the Corporation of functions currently
exercised by the council.
(2) This clause ceases to have effect on the third anniversary of the
commencement of section 4.
Page 68
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