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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
BELL BAY POWER STATION BILL 2004
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART 2 PURCHASE OF COMPANY
4. Power to sell Company
5. Power to purchase Company
6. Consideration for purchase of shares
7. Shares
8. Contracts
9. Taxes
10. Constitution of Company
11. Board of Company
12. Status of Company
PART 3 FINANCIAL PROVISIONS
13. Accounts and report of Company
14. Loan from Treasurer
15. Guarantee or indemnity
[Bill 34]-X
16. Fees in respect of guarantee
17. Tax equivalents
18. Audit
19. Treasurer's Instructions
20. Effect of Financial Agreement Act 1994
21. Superannuation
PART 4 MISCELLANEOUS AND SUPPLEMENTAL
22. Limitation on sale, &c., of assets
23. Limitations on Treasurer and Minister
24. Land Acquisition Act 1993 does not apply
25. Arrangements with Minister
26. Regulations
27. Administration of Act
SCHEDULE 1 PROVISIONS TO BE INCLUDED IN
CONSTITUTION
2
BELL BAY POWER STATION BILL 2004
(Brought in by the Treasurer, the Honourable Paul
Anthony Lennon)
A BILL FOR
An Act to provide for the transfer of Bell Bay Power
Pty. Ltd. from the Hydro-Electric Corporation to the
Crown and for related purposes
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Bell Bay Power Station Act
2004.
Commencement
2. (1) Part 1 and sections 11, 26 and 27 commence on the
day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act commence
on a day to be proclaimed.
[Bill 34] 3
s. 3 No. Bell Bay Power Station 2004
Interpretation
3. In this Act, unless the contrary intention appears
"Board" means the board of directors of the
Company;
"Company" means Bell Bay Power Pty. Ltd.
(ACN 097 079 331);
"existing shares" means the shares in the
Company that were issued to Hydro Tasmania
before their sale to the Crown under Part 2;
"Hydro Tasmania" means the Hydro-Electric
Corporation continued under the Hydro-
Electric Corporation Act 1995;
"Minister" means the Minister administering the
Energy Co-ordination and Planning Act 1995;
"subsidiary" has the same meaning as in the
Corporations Act.
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2004 Bell Bay Power Station No. s. 4
PART 2 PURCHASE OF COMPANY
Power to sell Company
4. Despite the Government Business Enterprises Act 1995
and the Hydro-Electric Corporation Act 1995, Hydro
Tasmania may sell the existing shares in the Company to
the Crown.
Power to purchase Company
5. On behalf of the Crown, the Treasurer and the Minister
may each purchase from Hydro Tasmania one half of all
the existing shares in the Company.
Consideration for purchase of shares
6. Consideration for the purchase of the existing shares
may be cash, the assumption of liabilities by the Crown or
otherwise as determined by the Treasurer in consultation
with Hydro Tasmania.
Shares
7. (1) The existing shares purchased by the Treasurer and
the Minister are held in trust for the Crown.
(2) The Treasurer and the Minister must not acquire
shares in the Company for his or her own benefit.
(3) Any shares acquired in the Company in
contravention of subsection (2) are taken to be held in
trust for the Crown but the Crown is not liable to meet the
cost of that acquisition.
5
s. 8 No. Bell Bay Power Station 2004
Contracts
8. A person who is a party to a contract with the Company
is not entitled to
(a) terminate the contract; or
(b) claim that there has been a breach or default
of the contract; or
(c) exercise any rights; or
(d) claim any remedy or benefit
by reason only of the purchase of the existing shares by
the Crown.
Taxes
9. Any tax, duty, fee or charge under any law of Tasmania
is not payable in respect of
(a) the purchase of the existing shares by the
Crown; or
(b) anything the Treasurer certifies, in writing, as
having been done as a consequence of or in
connection with the purchase of the existing
shares by the Crown.
Constitution of Company
10. (1) Hydro Tasmania is to ensure that, as soon as
practicable after this section commences, the constitution
of the Company
(a) includes provisions to the effect of the
provisions set out in Schedule 1; and
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2004 Bell Bay Power Station No. s. 11
(b) is consistent with this Act.
(2) While the Crown has beneficial ownership of all
the shares in the Company, the Treasurer and the
Minister are to ensure that the constitution of the
Company
(a) includes provisions to the effect of the
provisions set out in Schedule 1; and
(b) is consistent with this Act.
Board of Company
11. (1) While Hydro Tasmania owns all the shares in the
Company, it is to ensure that the Company has a Board
that
(a) has the experience and skills necessary to
enable the Company to conduct its affairs; and
(b) includes at least 2 directors who are neither
(i) members of the board of directors of
Hydro Tasmania; or
(ii) employees of Hydro Tasmania.
(2) While the Crown has beneficial ownership of all
the shares in the Company, the Treasurer and the
Minister are to ensure that the Company has a Board that
has the experience and skills necessary to enable the
Company to conduct its affairs.
Status of Company
12. (1) Unless this or any other Act expressly provides
otherwise, the Company, or a subsidiary of the Company,
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s. 12 No. Bell Bay Power Station 2004
while the Crown has beneficial ownership of all the shares
in the Company
(a) is not, and does not represent, the Crown; and
(b) is not exempt from any rate, tax, duty or other
impost imposed under any law merely because
the Crown has beneficial ownership of shares
in it; and
(c) is not subject to any prerogative right or
privilege of the Crown.
(2) The Crown is not liable for any liability or
obligation of the Company unless the Treasurer gives a
guarantee or indemnity under section 15.
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2004 Bell Bay Power Station No. s. 13
PART 3 FINANCIAL PROVISIONS
Accounts and report of Company
13. (1) While the Crown has beneficial ownership of all
the shares in the Company, the Board is to provide the
Treasurer and the Minister with copies of
(a) the constitution of the Company as soon as
practicable after
(i) the purchase of the Company by the
Crown; or
(ii) any adoption by the Company of a new
constitution; and
(b) any amendment to the constitution of the
Company as soon as practicable after that
amendment is made; and
(c) any financial statement, directors' report or
auditor's report and the annual return for the
Company as required by the Corporations Act
as soon as practicable after the making of that
statement, report or return.
(2) The Minister is to cause the copies referred to in
subsection (1) to be laid before each House of Parliament
within 7 sitting days after receiving them.
Loan from Treasurer
14. (1) While the Crown has beneficial ownership of all
the shares in the Company, the Treasurer may lend to the
Company or its subsidiary, out of money provided by
Parliament for the purpose, any money the Treasurer
considers appropriate.
9
s. 15 No. Bell Bay Power Station 2004
(2) A loan is subject to any conditions the Treasurer
determines.
(3) An amount lent under subsection (1), together
with any interest or other charge payable in respect of
that amount, is a debt repayable to the Crown.
Guarantee or indemnity
15. (1) While the Crown has beneficial ownership of all
the shares in the Company, the Treasurer, on the written
request of the Company or its subsidiary, may give a
guarantee or an indemnity relating to
(a) the repayment of any money lent or agreed to
be lent to the Company or subsidiary; or
(b) the performance of an obligation undertaken
by the Company or subsidiary, or which the
Company or subsidiary has agreed to
undertake, whether that obligation is
monetary or otherwise.
(2) A guarantee or an indemnity
(a) is to be in writing; and
(b) may include a guarantee of, or an indemnity
relating to, any interest and other charges
payable in respect of money lent or agreed to
be lent or in respect of or arising from an
obligation undertaken or agreed to be
undertaken; and
(c) is subject to any conditions that the Treasurer
determines and specifies in the guarantee or
indemnity.
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2004 Bell Bay Power Station No. s. 16
(3) The Treasurer is to make any payment required
under or arising from a guarantee or indemnity out of
money provided by Parliament for the purpose.
(4) This section has effect regardless of where the
loan or obligation was undertaken or agreed to be
undertaken or where it is required to be repaid or
performed.
Fees in respect of guarantee
16. While the Crown has beneficial ownership of all the
shares in the Company, Division 1 of Part 11 of the
Government Business Enterprises Act 1995 applies in
respect of the Company or a subsidiary of the Company as
if
(a) the Company or subsidiary were a
Government Business Enterprise specified in
Schedule 3 to that Act; and
(b) a reference to financial accommodation in that
Division were a reference to a financial benefit
arising from a guarantee given under
section 15 of this Act.
Tax equivalents
17. While the Crown has beneficial ownership of all the
shares in the Company, the provisions of Part 10 of the
Government Business Enterprises Act 1995 apply in
respect of the Company and a subsidiary of the Company
as if
(a) the Company were a Government Business
Enterprise specified in Schedule 2 to that Act;
and
11
s. 18 No. Bell Bay Power Station 2004
(b) the subsidiary were a subsidiary within the
meaning of that Act.
Audit
18. After the purchase of the existing shares by the
Crown, the Auditor-General is to act as the auditor for the
Company unless the Company appoints another person as
auditor for the Company.
Treasurer's Instructions
19. While the Crown has beneficial ownership of all the
shares in the Company, any Treasurer's Instructions
issued under the Government Business Enterprises Act
1995 providing for guidelines relating to the
determination, calculation and payment of income tax
equivalents, guarantee fees and other related matters,
including superannuation, apply to the Company or its
subsidiary as if the Company or subsidiary were a
Government Business Enterprise specified in Schedule 2
to that Act.
Effect of Financial Agreement Act 1994
20. If the Treasurer, under section 5(1) of the Financial
Agreement Act 1994 and while the Crown has beneficial
ownership of all the shares in the Company, requires the
Company to do or refrain from doing anything for the
purpose of implementing the Agreement, within the
meaning of that Act, the Company is to comply with that
requirement.
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2004 Bell Bay Power Station No. s. 21
Superannuation
21. (1) Subject to subsection (2), while the Crown has
beneficial ownership of all the shares in the Company, the
Company may make contributions to one or more
superannuation schemes that comply with the law of the
Commonwealth relating to superannuation and may
participate in the superannuation scheme provided by the
Retirement Benefits Act 1993 or the Public Sector
Superannuation Reform Act 1999.
(2) Subsection (1) only authorises the Company to
participate in a superannuation scheme referred to in that
subsection in respect of an employee of the Company if,
were the Company a Government department, that
employee would be eligible to participate in that
superannuation scheme.
(3) If the Company participates in either of the
superannuation schemes referred to in subsection (1),
those of its employees who are subject to the
superannuation scheme are taken to be employed by the
State for the purposes of the Retirement Benefits Act 1993
or the Public Sector Superannuation Reform Act 1999.
(4) A contribution made by the Company to a
superannuation scheme referred to in subsection (1) in
respect of any of its employees is not to be in excess of the
rate specified in section 6(7) of the Public Sector
Superannuation Reform Act 1999.
(5) The Company may not establish a
superannuation scheme.
(6) If the Company participates in a superannuation
scheme provided by the Retirement Benefits Act 1993 or
the Public Sector Superannuation Reform Act 1999, the
Company is to comply with any instruction relating to
superannuation given to it by the Minister administering
those Acts.
13
s. 22 No. Bell Bay Power Station 2004
PART 4 MISCELLANEOUS AND SUPPLEMENTAL
Limitation on sale, &c., of assets
22. (1) While the Crown has beneficial ownership of all
the shares in the Company, the Company may not sell or
otherwise dispose of the whole or a substantial part of its
undertaking or assets unless the sale or disposal is
approved by each House of Parliament.
(2) For the purposes of subsection (1), a sale or
disposal is approved by a House of Parliament
(a) when the House passes a motion approving
the sale or disposal; or
(b) if no notice of a motion to disapprove the sale
or disposal is before the House at the end of 5
sitting-days after notice of the sale or disposal
was laid before the House, when that period
ends; or
(c) if notice of any such motion to disapprove is
before the House at the end of that period,
when the first of the following occurs:
(i) the notice is withdrawn;
(ii) the motion is negatived;
(iii) a further period of 5 sitting-days ends.
Limitations on Treasurer and Minister
23. (1) The Treasurer and Minister must not sell or
otherwise dispose of the shares held by them unless the
sale or disposal is approved by each House of Parliament.
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2004 Bell Bay Power Station No. s. 23
(2) For the purposes of subsection (1), a sale or
disposal is approved by a House of Parliament
(a) when the House passes a motion approving
the sale or disposal; or
(b) if no notice of a motion to disapprove the sale
or disposal is before the House at the end of 5
sitting-days after notice of the sale or disposal
was laid before the House, when that period
ends; or
(c) if notice of any such motion to disapprove is
before the House at the end of that period,
when the first of the following occurs:
(i) the notice is withdrawn;
(ii) the motion is negatived;
(iii) a further period of 5 sitting-days ends.
(3) The Treasurer and Minister must not vote at a
meeting of the shareholders of the Company to allow the
Company to
(a) offer shares in the Company for subscription;
or
(b) grant options over unissued shares in the
Company; or
(c) invite persons to subscribe for shares in the
Company; or
(d) allot or issue shares in the Company on a
basis other than to existing shareholders pro
rata to their existing shareholding.
(4) In subsection (3), a reference to shares includes a
reference to shares of a kind specified in section 254A(1) of
the Corporations Act.
15
s. 24 No. Bell Bay Power Station 2004
(5) The Treasurer and Minister must not vote at a
meeting of the shareholders of the Company to allow the
Company to sell or otherwise dispose of the whole or a
substantial part of its undertaking or assets unless the
sale or disposal is approved by each House of Parliament
in accordance with section 22(2).
Land Acquisition Act 1993 does not apply
24. The Company is not a public authority for the
purposes of the Land Acquisition Act 1993.
Arrangements with Minister
25. (1) While the Crown has beneficial ownership of all
the shares in the Company, the Minister may enter into
an agreement with the Company under which it agrees to
perform, or to cease to perform, functions.
(2) The terms of the agreement may provide for
reimbursement to the Company out of money provided by
Parliament for the purpose.
Regulations
26. (1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may be made so as to apply
differently according to such factors as are specified in the
regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or regulated by a
person specified in the regulations.
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2004 Bell Bay Power Station No. s. 27
(4) The regulations may contain provisions of a
savings or transitional nature consequent on the
commencement of a provision of this Act or on the sale of
the existing shares to the Crown under Part 2.
(5) Regulations made under subsection (4) may take
effect on the day on which the event consequent on which
they are made occurs or a later day as specified in the
regulations, whether the day so specified is before, on or
after the day on which the regulations are made.
Administration of Act
27. Until provision is made in relation to this Act by order
under section 4 of the Administrative Arrangements Act
1990
(a) the administration of this Act is assigned to
the Treasurer; and
(b) the department responsible to the Treasurer
in relation to the administration of this Act is
the Department of Treasury and Finance.
17
sch. 1 No. Bell Bay Power Station 2004
SCHEDULE 1 PROVISIONS TO BE INCLUDED IN
CONSTITUTION
Section 10
Interpretation
1. Words, phrases and expressions used in this
constitution have the same meanings as in
(a) the Corporations Act; and
(b) except where inconsistent with that Act, the
Bell Bay Power Station Act 2004.
Powers and duties of Board
2. Subject to the Corporations Act and this constitution
(a) the business of the Company must be
managed by the board of directors; and
(b) the board of directors may exercise all powers
of the Company as are not, by the
Corporations Act or by this constitution,
required to be exercised by the members.
Approval for borrowings
3. Except where approved by special resolution, the
Company must not borrow from any person other than the
Tasmanian Public Finance Corporation or the Treasurer.
18
2004 Bell Bay Power Station No. sch. 1
Approval for matters relating to ownership of
subsidiaries
4. Except where approved by special resolution, the
Company must not
(a) form or acquire, or participate in the
formation or acquisition of, a subsidiary; or
(b) dispose of shares in a subsidiary; or
(c) enter into any transaction which may result in
a subsidiary ceasing to be a subsidiary.
Approval for constitution of subsidiary in relation
to borrowings
5. Except where approved by special resolution, the
Company must not
(a) approve the constitution of a subsidiary unless
the constitution contains provisions that are
substantially the same as clauses 3 and 4 of
Schedule 1 to the Bell Bay Power Station Act
2004; or
(b) approve or effect an amendment to one or
more of those provisions.
Member request for information
6. On the written request of a member, the Company
must provide to the member
(a) the business or strategic plans of the Company
and any subsidiary as specified in the request;
and
19
sch. 1 No. Bell Bay Power Station 2004
(b) any financial information relating to the
Company specified in the request; and
(c) a report on the matters relating to the
Company specified in the request; and
(d) any other information relevant to any such
plan, financial information or report.
20 Government Printer, Tasmania