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TASMANIA
__________
GOVERNMENT BUSINESS ENTERPRISES
AMENDMENT BILL 2002
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Sections 3A and 3B inserted
3A. Associated entities
3B. Material personal interest
6. Section 7 amended (Principal objectives of Government
Business Enterprise)
7. Section 10 amended (Limitation on powers)
8. Section 11 amended (Board)
9. Section 12 amended (Role of Board)
10. Section 13 amended (Duty to notify Treasurer and
Portfolio Minister of adverse developments)
11. Section 18 amended (Chief executive officer)
12. Sections 20A and 20B inserted
20A. Effect of chief executive officer ceasing to be chief
executive officer
20B. Annual performance review
13. Part 5: Heading amended
[Bill 84]-X
14. Sections 23A and 23B inserted
23A. Power of former director to access records
23B. Power of director to access records
15. Section 24 substituted
24. Duties of officers and employees
16. Section 25 amended (Duty to prevent insolvent trading)
17. Section 26 amended (False or misleading information)
18. Sections 27 and 28 substituted
27. Reliance on information or advice
28. Director to disclose material personal interest
28A. Board may declare material personal interest
28B. Standing notice of director's interest
28C. Restriction on director's participation in case of
material personal interest
28D. Director may be required to divest of material
personal interest
19. Section 29 amended (Civil penalty order)
20. Section 31 amended (Proceedings for offence)
21. Section 33 amended (Compensation and other payments
for contravention of this Part)
22. Section 34 substituted
34. Indemnifying officers
23. Section 35 amended (Premiums for certain liabilities of
officers)
24. Section 36 amended (Ministerial charter)
25. Section 37 amended (Contents of ministerial charter)
26. Section 39 amended (Corporate plan)
27. Section 40 amended (Consultation with Portfolio
Minister and Treasurer)
28. Section 41 amended (Statement of corporate intent)
29. Section 45 amended (Borrowing from Treasurer)
30. Section 52 amended (Financial statements)
31. Section 54 amended (Opinion of Auditor-General)
32. Section 55 amended (Annual report)
2
33. Section 58 amended (Additional information)
34. Section 61 amended (Declaration of community service
obligation)
35. Section 62 amended (Costing basis for community service
obligation)
36. Section 63 substituted
63. Funding of community service obligation
37. Section 64 amended (Review of costing basis and funding
arrangement)
38. Section 64A inserted
64A. Amendment or revocation of declaration of
community service obligation
39. Section 80 amended (Penalty for late payment of
guarantee fee)
40. Section 83 amended (Recommendation for dividend
payable)
41. Section 84 amended (Determination of dividend)
42. Section 85 amended (Interim dividend)
43. Section 86 amended (Special dividend)
44. Section 88 amended (Penalty for late payment of
dividend, interim dividend or special dividend)
45. Section 97 amended (Transfer of Crown land)
46. Section 98 amended (Transfer of property other than
Crown land)
47. Section 107 amended (Service of documents)
48. Section 114 amended (Treasurer's Instructions)
49. Section 117 amended (Validity of act not affected by
failure to consult, &c.)
50. Section 118 amended (Delegation by Portfolio Minister or
Treasurer)
51. Section 120 amended (Regulations)
52. Sections 121, 122, 122A and 123 repealed
53. Schedule 5 amended (Directors)
3
54. Schedule 6 amended (Meetings of Board)
55. Schedule 8 amended (Government Business Enterprises
that are not the Crown)
56. Schedule 9 repealed
57. Substitutions
Schedule 1 Substitutions
4
GOVERNMENT BUSINESS ENTERPRISES
AMENDMENT BILL 2002
(Brought in by the Minister for Education, the Honourable
Paula Catherine Wriedt)
A BILL FOR
An Act to amend the Government Business
Enterprises Act 1995
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:
Short title
1. This Act may be cited as the Government Business
Enterprises Amendment Act 2002.
Commencement
2. (1) Section 32 commences on 1 January 2003.
(2) The remaining provisions of this Act commence
on the day on which this Act receives the Royal Assent.
[Bill 84] 5
s. 3 No. Government Business Enterprises 2002
Amendment
Principal Act
3. In this Act, the Government Business Enterprises Act
1995* is referred to as the Principal Act.
Section 3 amended (Interpretation)
4. Section 3(1) of the Principal Act is amended as follows:
(a) by inserting the following definition after the
definition of "annual report":
"associated entity" has the meaning
given by section 3A;
(b) by inserting the following definition after the
definition of "interim dividend":
"interim report" means
(a) a quarterly report under
section 57; and
(b) information provided to a
Minister under section 58;
(c) by omitting "abnormal or" from paragraph (a)
of the definition of "loss";
(d) by inserting the following definition after the
definition of "main undertaking":
"material personal interest" has the
meaning given by section 3B;
(e) by omitting the definition of "Stakeholder
Minister".
*No. 22 of 1995
6
2002 Government Business Enterprises No. s. 5
Amendment
Sections 3A and 3B inserted
5. After section 3 of the Principal Act, the following
sections are inserted in Part 1:
Associated entities
3A. (1) In relation to a director, each of the
following persons is an associated entity if the
director or a relative of the director has control over
the person:
(a) a body corporate;
(b) a partnership or other unincorporated
association of persons;
(c) a majority of trustees of a trust.
(2) For the purposes of determining whether
the director has control over a person referred to in
subsection (1), the following matters may be taken
into account:
(a) whether the director or his or her
relative is a shareholder in, a director or
other officer of or a trustee of that
person;
(b) whether the director or his or her
relative is a beneficiary in the trust of
which that person is a trustee;
(c) any other matter or relationship that is
relevant.
(3) For the purposes of determining whether
the relative of a director has control over a person
referred to in subsection (1), the following matters
may be taken into account:
7
s. 5 No. Government Business Enterprises 2002
Amendment
(a) whether the relative or his or her
relative is a shareholder in, a director or
other officer of or a trustee of that
person;
(b) whether the relative or his or her
relative is a beneficiary in the trust of
which that person is a trustee;
(c) any other matter or relationship that is
relevant.
Material personal interest
3B. (1) In this Act, "material personal interest",
in respect of a director of a Government Business
Enterprise, includes
(a) a direct or indirect interest; and
(b) a pecuniary or non-pecuniary interest;
and
(c) the interest of a relative of the director;
and
(d) the interest of an associated entity; and
(e) an interest in a corporation, within the
meaning of the Corporations Act 2001 of
the Commonwealth; and
(f) the director's employment by a person
with a direct or indirect interest in that
Government Business Enterprise of
which the director is a director; and
(g) the holding by the director of an office
where there arises or may arise a
conflict between his or her duties in that
office and his or her duties as director of
8
2002 Government Business Enterprises No. s. 6
Amendment
that Government Business Enterprise;
and
(h) the holding by the director of the office of
member in another statutory authority
or in the governing authority of another
statutory authority; and
(i) any other interest that does, or may,
give rise to a conflict of interest.
(2) A director of a Government Business
Enterprise does not have a material personal
interest by reason only of the director also being a
State Service employee or State Service officer.
(3) A director of a Government Business
Enterprise does not have a material personal
interest by reason only of an interest in a contract
with the Government Business Enterprise for a good
or service ordinarily supplied by the Government
Business Enterprise and supplied on the same terms
as that good or service is ordinarily supplied to other
persons in the same situation.
Section 7 amended (Principal objectives of
Government Business Enterprise)
6. Section 7(1)(a) of the Principal Act is amended by
omitting subparagraph (ii) and substituting the following
subparagraph:
(ii) achieving a sustainable commercial rate
of return that maximises value for the
State in accordance with its corporate
plan and having regard to the economic
and social objectives of the State; and
9
s. 7 No. Government Business Enterprises 2002
Amendment
Section 10 amended (Limitation on powers)
7. Section 10 of the Principal Act is amended as follows:
(a) by omitting from subsection (2) "memorandum
and articles that are to be the memorandum
and articles" and substituting "constitution
that is to be the constitution";
(b) by omitting from subsection (4) "memorandum
or articles" and substituting "constitution";
(c) by omitting from subsection (5)(a)
"memorandum and articles that are" and
substituting "constitution that is";
(d) by omitting from subsection (5)(b)
"memorandum or article" twice occurring and
substituting "constitution".
Section 11 amended (Board)
8. Section 11 of the Principal Act is amended as follows:
(a) by omitting from subsection (2)
"recommendation of the" and substituting
"joint recommendation of the Treasurer and";
(b) by omitting subsection (3) and substituting the
following subsections:
(3) The Treasurer and Portfolio Minister
must not make a recommendation under
subsection (2) unless
(a) they have considered any
recommendations made by the
Board of the Government Business
Enterprise under subsection (3A);
and
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2002 Government Business Enterprises No. s. 9
Amendment
(b) they are satisfied that the person
recommended has the experience
and skills necessary to enable the
Government Business Enterprise
to achieve its objectives.
(3A) The Board may provide the
Treasurer and Portfolio Minister with its
recommendations, in writing, in respect of the
appointment of a chairperson or another
director.
Section 12 amended (Role of Board)
9. Section 12 of the Principal Act is amended by inserting
"and Treasurer, jointly" after "Minister".
Section 13 amended (Duty to notify Treasurer and
Portfolio Minister of adverse developments)
10. Section 13(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "participates."
and substituting "participates; or";
(b) by inserting the following paragraph after
paragraph (b):
(c) otherwise significantly affect the
Government Business Enterprise
in any manner.
Section 18 amended (Chief executive officer)
11. Section 18 of the Principal Act is amended as follows:
11
s. 11 No. Government Business Enterprises 2002
Amendment
(a) by inserting the following subsections after
subsection (2):
(2A) Except as provided by
subsection (2D), a person must not be
recommended to the Premier for appointment
as a chief executive officer of a Government
Business Enterprise unless that person has
been nominated for recommendation by the
Board.
(2B) If a person is to be appointed as
chief executive officer of a Government
Business Enterprise, the Portfolio Minister
may require the Board, within the period
specified in the requirement
(a) to nominate a person it considers
suitable to hold the office of chief
executive officer; and
(b) to provide a recommendation in
respect of the remuneration and
allowances for the chief executive
officer; and
(c) to provide details of the
performance appraisal system the
Board intends to use to review the
performance of the chief executive
officer.
(2C) If the Portfolio Minister does not
consider the person nominated by the Board
under subsection (2B)(a) to be suitable to hold
the office of chief executive officer, the
Portfolio Minister may, under that subsection,
require the Board to provide the name of
another person it considers suitable to hold
that office.
12
2002 Government Business Enterprises No. s. 11
Amendment
(2D) If the Board fails to nominate a
person as required under subsection (2B), the
Portfolio Minister may recommend for the
purposes of subsection (2) a person who the
Portfolio Minister considers suitable but who
has not been nominated by the Board.
(b) by omitting subsection (5) and substituting the
following subsection:
(5) The Premier, on the recommendation
of the Portfolio Minister or the Board, may
revoke the appointment of a chief executive
officer made under subsection (2)
(a) if the instrument of appointment
makes provision in respect of the
early termination of the
appointment, in accordance with
the instrument of appointment; or
(b) if the instrument of appointment
does not make such provision, on
the terms determined by the
Premier.
(c) by omitting from subsection (6) "subsection (2)
or (5)" and substituting "subsection (5)";
(d) by inserting the following subsection after
subsection (6):
(6A) The Board must not make a
recommendation under subsection (5) unless it
has first consulted with the Portfolio Minister.
(e) by omitting subsection (8).
13
s. 12 No. Government Business Enterprises 2002
Amendment
Sections 20A and 20B inserted
12. After section 20 of the Principal Act, the following
sections are inserted in Division 1:
Effect of chief executive officer ceasing to be
chief executive officer
20A. (1) If a person holds both the office of chief
executive officer of a Government Business
Enterprise and the office of director in that
Government Business Enterprise, on the
termination of his or her appointment as chief
executive officer
(a) his or her appointment as director is
revoked; and
(b) any appointment of that person as
director in a subsidiary of that
Government Business Enterprise is
revoked; and
(c) any membership of that person in any
committee created by the Board or other
managing authority of that Government
Business Enterprise or subsidiary
ceases.
(2) Subsection (1) does not affect the eligibility
of the person to be reappointed to an office referred
to in that subsection.
Annual performance review
20B. (1) The Board is to conduct, in respect of each
financial year, a review of the performance of the
chief executive officer during that financial year.
(2) The review of the performance of the chief
executive officer is to be completed not later than 90
14
2002 Government Business Enterprises No. s. 13
Amendment
days after the end of the financial year in respect of
which it is conducted.
(3) The Board is to provide the Portfolio
Minister with a copy of its findings in the review of
the performance of the chief executive officer within
14 days after completing the review.
Part 5: Heading amended
13. Part 5 of the Principal Act is amended by omitting
"DUTIES" from the heading to that Part and substituting
"POWERS AND DUTIES".
Sections 23A and 23B inserted
14. Before section 24 of the Principal Act, the following
sections are inserted in Part 5:
Power of former director to access records
23A. (1) In this section, "former director" means
a person who ceased to be a director within the
period of 7 years immediately preceding the relevant
time.
(2) A former director of a Government
Business Enterprise may inspect and make copies of
the records of the Government Business Enterprise,
including its accounting records, financial
statements and interim reports, at any reasonable
time for the purpose of a legal proceeding
(a) to which the former director is a party;
or
(b) that the former director proposes in good
faith to bring; or
15
s. 15 No. Government Business Enterprises 2002
Amendment
(c) that the former director has reason to
believe will be brought against him or
her.
(3) The Government Business Enterprise must
allow a former director to exercise his or her powers
under this section to inspect and make copies of
records.
Penalty: Fine not exceeding 500 penalty units.
(4) This section does not limit any right of
access to the records of a Government Business
Enterprise that a former director has apart from this
section.
Power of director to access records
23B. (1) A director may inspect and make copies of
the records of the Government Business Enterprise,
including its accounting records, financial
statements and interim reports, at any reasonable
time.
(2) A director or officer must not prevent a
director from exercising his or her powers under this
section to inspect and make copies of records.
Penalty: Fine not exceeding 50 penalty units.
Section 24 substituted
15. Section 24 of the Principal Act is repealed and the
following section is substituted:
Duties of officers and employees
24. (1) In this section
16
2002 Government Business Enterprises No. s. 15
Amendment
"business judgment" means any decision to
take or not take action in respect of a
matter relevant to the business
operations of the Government Business
Enterprise;
"former employee" means a person who
ceased to be an employee within the
period of 7 years immediately preceding
the relevant time;
"former officer" means a person who ceased
to be an officer within the period of 7
years immediately preceding the
relevant time.
(2) An officer of a Government Business
Enterprise must perform and exercise the functions
and powers of his or her office in that Government
Business Enterprise
(a) in good faith in the best interests of the
Government Business Enterprise; and
(b) for a proper purpose.
Penalty: Fine not exceeding 2 000 penalty
units or a term of imprisonment not
exceeding 5 years, or both.
(3) An officer of a Government Business
Enterprise must exercise his or her powers and
perform his or her functions with the degree of care
and diligence that a reasonable person would
exercise if he or she
(a) were an officer of a Government
Business Enterprise in the
circumstances of the Government
Business Enterprise; and
17
s. 15 No. Government Business Enterprises 2002
Amendment
(b) occupied the office held by, and had the
same responsibilities within the
Government Business Enterprise as, the
officer.
Penalty: Fine not exceeding 2 000 penalty
units or a term of imprisonment not
exceeding 5 years, or both.
(4) An officer of a Government Business
Enterprise who makes a business judgment is taken
to meet the requirements of subsection (2), and his
or her equivalent duties at common law and in
equity, in respect of the judgment if the officer
(a) makes the judgment in good faith for a
proper purpose; and
(b) does not have a material personal
interest in the subject matter of the
judgment; and
(c) informs himself or herself about the
subject matter of the judgment to the
extent he or she reasonably believes to
be appropriate; and
(d) rationally believes that the judgment is
in the best interests of the Government
Business Enterprise.
(5) For the purposes of subsection (4)(d), the
belief of an officer of a Government Business
Enterprise that a business judgment is in the best
interests of the Government Business Enterprise is
rational unless the belief is one that no reasonable
person in the position of the officer would hold.
(6) An officer, employee, former officer or
former employee of a Government Business
Enterprise must not make improper use, in
18
2002 Government Business Enterprises No. s. 16
Amendment
Tasmania or elsewhere, of information acquired
because of his or her office or employment in the
Government Business Enterprise
(a) to gain, directly or indirectly, an
advantage for himself or herself or
another person; or
(b) to cause damage to the Government
Business Enterprise or any of its
subsidiaries.
Penalty: Fine not exceeding 2 000 penalty
units or a term of imprisonment not
exceeding 5 years, or both.
(7) An officer or employee must not make
improper use, in Tasmania or elsewhere, of his or
her position as an officer or employee of a
Government Business Enterprise
(a) to gain, directly or indirectly, an
advantage for himself or herself or
another person; or
(b) to cause damage to the Government
Business Enterprise or any of its
subsidiaries.
Penalty: Fine not exceeding 2 000 penalty
units or a term of imprisonment not
exceeding 5 years, or both.
Section 25 amended (Duty to prevent insolvent
trading)
16. Section 25(3)(f) of the Principal Act is amended by
omitting "or Stakeholder Minister" and substituting "and
Treasurer".
19
s. 17 No. Government Business Enterprises 2002
Amendment
Section 26 amended (False or misleading
information)
17. Section 26 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(a) "the
Stakeholder Minister,";
(b) by omitting from subsection (1)(b) "the
Stakeholder Minister,";
(c) by omitting from subsection (3) "the
Stakeholder Minister,".
Sections 27 and 28 substituted
18. Sections 27 and 28 of the Principal Act are repealed
and the following sections are substituted:
Reliance on information or advice
27. If
(a) an officer of a Government Business
Enterprise relies on information, or
professional or expert advice, given or
prepared by
(i) an employee of the Government
Business Enterprise who the
officer believes on reasonable
grounds to be reliable and
competent in relation to the
matters concerned; or
(ii) a professional adviser or expert in
relation to matters that the officer
believes on reasonable grounds to
be within the person's professional
or expert competence; or
20
2002 Government Business Enterprises No. s. 18
Amendment
(iii) another officer in relation to
matters within the officer's
authority; or
(iv) a committee of officers on which
the officer did not serve in relation
to matters within the committee's
authority; and
(b) the reliance was made
(i) in good faith; and
(ii) after making an independent
assessment of the information or
advice, having regard to the
officer's knowledge of the
Government Business Enterprise
and the complexity of the
structure and operations of the
Government Business Enterprise;
and
(c) the reasonableness of the officer's
reliance on the information or advice
arises in proceedings brought to
determine whether an officer has
performed a duty under this Act or an
equivalent general law duty
the officer's reliance on the information or advice is
taken to be reasonable unless the contrary is proved.
Director to disclose material personal interest
28. (1) A director who has or may have a material
personal interest in a matter that relates to the
affairs of the Government Business Enterprise must
give the other directors notice of the interest except
where
21
s. 18 No. Government Business Enterprises 2002
Amendment
(a) the interest
(i) arises in relation to the director's
remuneration as a director of the
Government Business Enterprise;
or
(ii) relates to a contract that insures,
or would insure, the director
against liabilities the director
incurs as an officer of the
Government Business Enterprise
(but only if the contract does not
make the Government Business
Enterprise or a related body the
insurer); or
(iii) relates to any payment by the
Government Business Enterprise
or a related body in respect of an
indemnity permitted under
section 35; or
(iv) is in a contract, or proposed
contract, with or for the benefit of,
or on behalf of, a related body and
arises because the director is a
director of the related body; or
(v) is a beneficial interest in shares in
a public company, within the
meaning of the Corporations Act
2001 of the Commonwealth, and
the total number of shares in
which the director has a beneficial
interest does not exceed 5% of the
total number of shares issued by
the company; or
22
2002 Government Business Enterprises No. s. 18
Amendment
(b) all of the following conditions are
satisfied:
(i) the director has already given
notice of the nature and extent of
the interest and its relation to the
affairs of the Government
Business Enterprise to all
directors under this subsection;
(ii) if after the time when notice of the
nature and extent of the interest
and its relation to the affairs of the
Government Business Enterprise
under this subsection was given a
person who was not a director of
the Government Business
Enterprise at that time is
appointed as a director, that notice
is given to the new director;
(iii) the nature or extent of the interest
has not materially increased above
that disclosed in the notice; or
(c) the director has given a standing notice
of the nature and extent of the interest
under section 28B and the notice is still
effective in relation to the interest.
Penalty: Fine not exceeding 500 penalty units.
(2) For the purposes of subsection (1), a body is
a related body in respect of a Government Business
Enterprise if
(a) the body is a subsidiary of the
Government Business Enterprise; or
(b) the Government Business Enterprise is
the body's subsidiary; or
23
s. 18 No. Government Business Enterprises 2002
Amendment
(c) the body and the Government Business
Enterprise are both subsidiaries of
another Government Business
Enterprise.
(3) The notice of a director's material personal
interest in a matter that relates to the affairs of the
Government Business Enterprise must
(a) include details of
(i) the nature and extent of the
interest; and
(ii) the relation of the interest to the
affairs of the Government
Business Enterprise; and
(b) be given at a meeting of the Board as
soon as practicable after the director
becomes aware of his or her interest in
the matter.
(4) The details of the notice of a director's
material personal interest in a matter that relates to
the affairs of the Government Business Enterprise
must be
(a) recorded in the minutes of the meeting
at which the notice is given; and
(b) provided to the Portfolio Minister and
Treasurer.
(5) A contravention of subsection (1) by a
director does not affect the validity of an act or
proceeding of the Board or of any person (including
that director) acting pursuant to any direction of the
Board.
24
2002 Government Business Enterprises No. s. 18
Amendment
Board may declare material personal interest
28A. (1) If a Board is of the opinion that a director
has a material personal interest in a matter that
relates to the affairs of the Government Business
Enterprise, it may pass a resolution declaring
(a) that the director has such an interest;
and
(b) the nature and extent of the interest;
and
(c) the relation of the interest to the affairs
of the Government Business Enterprise.
(2) If a declaration is made under
subsection (1), the director declared to have a
material personal interest is taken to have that
interest.
(3) The details of a declaration made under
subsection (1) must be provided to the Portfolio
Minister and Treasurer.
(4) The making of a declaration under
subsection (1) does not preclude the taking of
proceedings for an offence against section 28(1) in
respect of the failure of the director to give notice of
the material personal interest.
Standing notice of director's interest
28B. (1) A director who has an interest, whether
direct or indirect, in a matter may give the other
directors of the Government Business Enterprise
standing notice of the nature and extent of the
interest.
(2) The standing notice may be given at any
time and whether or not the matter relates to the
25
s. 18 No. Government Business Enterprises 2002
Amendment
affairs of the Government Business Enterprise at
the time the notice is given.
(3) The standing notice must
(a) include details of the nature and extent
of the interest; and
(b) be given
(i) at a meeting of the Board, either
in writing or orally; or
(ii) to the other directors individually
in writing.
(4) Standing notice given to the directors
individually
(a) must be tabled at the next meeting of
the Board after it has been given; and
(b) is given when it has been given to every
director.
(5) The details of the standing notice given at
or tabled at a meeting of the Board must be
(a) recorded in the minutes of the meeting;
and
(b) provided to the Portfolio Minister and
Treasurer.
(6) A standing notice
(a) takes effect as soon as it is given; and
(b) ceases to have effect if a person who was
not a director of the Government
Business Enterprise at the time when
26
2002 Government Business Enterprises No. s. 18
Amendment
the notice was given is appointed as a
director.
(7) A standing notice that has ceased to have
effect under subsection (6) recommences to have
effect if it is given to the new director referred to in
that subsection.
(8) A standing notice ceases to have effect in
relation to a particular interest if the nature or
extent of the interest materially increases above that
disclosed in the notice.
Restriction on director's participation in case
of material personal interest
28C. (1) If a director has a material personal
interest in a matter being considered at a meeting of
the Board, the director must not, except as allowed
by the Board under subsection (4)
(a) be present while the matter is being
considered; and
(b) vote on the matter.
(2) If
(a) a director has a material personal
interest in a contract that the
Government Business Enterprise has
with a person; and
(b) either
(i) the director, in compliance with
subsection (1), was not present
while the Board considered
whether to enter into the contract
and did not vote on the matter; or
27
s. 18 No. Government Business Enterprises 2002
Amendment
(ii) the director was allowed under
subsection (4) to be present while
the Board considered whether to
enter into the contract and to vote
on the matter
the Government Business Enterprise, by reason of
the director holding that interest, cannot avoid the
contract and the director is not liable to account to
the Government Business Enterprise for any profits
derived from that interest.
(3) If
(a) a director has a material personal
interest in a contract that the
Government Business Enterprise has
with a person; and
(b) the director, in contravention of
subsection (1), was present while the
Board considered whether to enter into
the contract or voted on the matter
the Government Business Enterprise, by reason of
the director holding that interest, may avoid the
contract and the director is liable to account to the
Government Business Enterprise for any profits
derived from that interest if the Board so determines
by written notice provided to the director.
(4) If a director has a material personal
interest in a matter being considered by the Board
and the Board, in the absence of the director, passes
a resolution that
(a) identifies the director, the nature and
extent of the interest and its relation to
the affairs of the Government Business
Enterprise; and
28
2002 Government Business Enterprises No. s. 19
Amendment
(b) states that the interest should not
disqualify the director from being
present when the matter is considered
by the Board or from voting on the
matter
the director may be present when the matter is
considered by the Board and may vote on the matter.
(5) Nothing in subsection (4) affects the duty
of the Board to provide notice of the material
personal interest to the Portfolio Minister and
Treasurer under section 28(4), 28A(3) or 28B(5).
Director may be required to divest of material
personal interest
28D. If the Portfolio Minister and Treasurer
consider that a material personal interest held by a
director is such that holding the interest is not
consistent with the proper discharge of his or her
duties as director, the Portfolio Minister and
Treasurer, jointly, may require the director to either
divest himself or herself of the interest or resign as
director.
Section 29 amended (Civil penalty order)
19. Section 29 of the Principal Act is amended as follows:
(a) by omitting from subsection (2) "section 24(1),
(2), (3) or (4) or 25(1)," and substituting
"section 24(2), (3), (6) or (7) or section 25(1),
the Government Business Enterprise or";
(b) by omitting from subsection (3) "that a person
has contravened section 24(1), (2), (3) or (4) or
25(1)," and substituting "of the matters
specified in subsection (3A),";
29
s. 19 No. Government Business Enterprises 2002
Amendment
(c) by inserting the following subsection after
subsection (3):
(3A) Before making an order under
subsection (3), the court must be satisfied
that
(a) the person has contravened
section 24(2), (3), (6) or (7) or
section 25(1); and
(b) the contravention of that section
(i) materially prejudices the
interests of the Government
Business Enterprise; or
(ii) materially prejudices the
ability of the Government
Business Enterprise to pay
its creditors; or
(iii) is serious.
(d) by omitting subsection (5) and substituting the
following subsection:
(5) The court must not make an order
under subsection (3)(b) if the court or any
other court has ordered the person to pay
punitive damages because of the act or
omission constituting the contravention.
(e) by omitting from subsection (6) "section 24(1),
(2), (3) or (4) or 25(1)" and substituting
"section 24(2), (3), (6) or (7) or section 25(1)";
(f) by inserting the following subsection after
subsection (7):
30
2002 Government Business Enterprises No. s. 20
Amendment
(7A) Proceedings may be commenced
and determined under this section whether or
not proceedings for an offence against
section 24(2), (3), (6) or (7) or section 25(2)
have been commenced or determined.
Section 31 amended (Proceedings for offence)
20. Section 31 of the Principal Act is amended by omitting
subsection (4) and substituting the following subsection:
(4) Proceedings for an offence against
section 24(2), (3), (6) or (7) or section 25(2) may be
commenced and determined whether or not
proceedings under section 29 in respect of the
contravention of section 24(2), (3), (6) or (7) or
section 25(1) have been commenced or determined.
Section 33 amended (Compensation and other
payments for contravention of this Part)
21. Section 33(2) of the Principal Act is amended by
omitting "section 24(5) or 25(2)" and substituting
"section 24(2), (3), (6) or (7) or section 25(2)".
Section 34 substituted
22. Section 34 of the Principal Act is repealed and the
following section is substituted:
Indemnifying officers
34. (1) A Government Business Enterprise must not
exempt a person, whether directly or through an
interposed person, from a liability to
31
s. 22 No. Government Business Enterprises 2002
Amendment
(a) that Government Business Enterprise;
or
(b) a subsidiary of that Government
Business Enterprise
incurred as an officer.
(2) A subsidiary of a Government Business
Enterprise must not exempt a person, whether
directly or through an interposed person, from a
liability to
(a) that subsidiary; or
(b) that Government Business Enterprise;
or
(c) another subsidiary of that Government
Business Enterprise
incurred as a person who is concerned with, or takes
part in, the management of that subsidiary,
Government Business Enterprise or other
subsidiary.
(3) A Government Business Enterprise or
subsidiary of a Government Business Enterprise
must not indemnify a person, whether by agreement
or by making a payment and whether directly or
through an interposed person, against any of the
following liabilities incurred as an officer of the
Government Business Enterprise:
(a) a liability owed to the Government
Business Enterprise, that subsidiary or
another subsidiary of that Government
Business Enterprise;
(b) a liability to pay compensation under an
order made under section 33;
32
2002 Government Business Enterprises No. s. 22
Amendment
(c) a liability that is owed to someone other
than that Government Business
Enterprise, that subsidiary or another
subsidiary of that Government Business
Enterprise and that did not arise out of
conduct in good faith.
(4) Subsection (3) does not apply to a liability
for legal costs.
(5) A Government Business Enterprise or
subsidiary of a Government Business Enterprise
must not indemnify a person, whether by agreement
or by making a payment and whether directly or
through an interposed person, against legal costs
incurred in defending an action for a liability
incurred as an officer of that Government Business
Enterprise if the costs are incurred
(a) in defending or resisting proceedings in
which the person is found to have a
liability for which he or she could not be
indemnified under subsection (3); or
(b) in defending or resisting proceedings for
an offence in which the person is found
guilty.
(6) For the purposes of subsection (5), the
outcome of proceedings is the outcome of the
proceedings and any appeal in relation to the
proceedings.
(7) An instrument is void so far as it provides
for a Government Business Enterprise to do
something that is prohibited by this section.
(8) The Statutory Authorities (Protection from
Liability of Members) Act 1993 does not apply in
33
s. 23 No. Government Business Enterprises 2002
Amendment
respect of a Government Business Enterprise or its
directors or chief executive officer.
Section 35 amended (Premiums for certain
liabilities of officers)
23. Section 35 of the Principal Act is amended as follows:
(a) by inserting in subsection (2) "regardless of
whether those costs are incurred in respect of
conduct referred to in subsection (1)(b)" after
"outcome";
(b) by inserting the following subsection after
subsection (2):
(2A) This section applies to a premium
whether it is paid directly or through an
interposed person.
Section 36 amended (Ministerial charter)
24. Section 36 of the Principal Act is amended as follows:
(a) by inserting in subsection (1) "and Treasurer,
jointly," after "Minister";
(b) by inserting in subsection (2) "and Treasurer,
jointly," after "Minister";
(c) by omitting from subsection (2) "his or her"
and substituting "their";
(d) by omitting subsection (3) and substituting the
following subsection:
(3) Before or while preparing a
ministerial charter or an amendment to a
34
2002 Government Business Enterprises No. s. 25
Amendment
ministerial charter, the Portfolio Minister and
Treasurer, jointly, must consult with the
Government Business Enterprise.
(e) by inserting in subsection (4) "and Treasurer"
after "Minister";
(f) by omitting subsection (5);
(g) by omitting from subsection (7) "providing a
copy of it to the Stakeholder Minister." and
substituting "it has been signed as required by
subsection (4).".
Section 37 amended (Contents of ministerial
charter)
25. Section 37(1) of the Principal Act is amended by
inserting "and Treasurer" after "Minister".
Section 39 amended (Corporate plan)
26. Section 39 of the Principal Act is amended as follows:
(a) by omitting subsection (2) and substituting the
following subsection:
(2) The corporate plan is to
(a) cover the period specified in the
Treasurer's Instructions; and
(b) be in a form and contain the
information specified in the
Treasurer's Instructions; and
35
s. 26 No. Government Business Enterprises 2002
Amendment
(c) be consistent with the ministerial
charter for the Government
Business Enterprise.
(b) by omitting from subsection (3) "Minister,
Stakeholder";
(c) by omitting from subsection (3) "90" and
substituting "60";
(d) by inserting the following subsection after
subsection (3):
(3A) The Portfolio Minister or the
Treasurer may authorise the Board to provide
the draft of a corporate plan under
subsection (3) by a day that is later than the
day specified in that subsection.
(e) by omitting from subsection (4) "the Portfolio
Minister" and substituting "both the Portfolio
Minister and Treasurer";
(f) by inserting in subsection (5) "and Treasurer,
jointly," after "Minister";
(g) by omitting from subsection (5) "section 40, by
not later than 30 days before the day on which
the corporate plan will take effect." and
substituting "section 40.";
(h) by inserting in subsection (6) "and Treasurer
or, if a day for its commencement is specified
in that approval, on that day" after "Minister";
(i) by inserting the following subsection after
subsection (7):
(7A) An amendment to a corporate plan
may be in the form of a new corporate plan
that replaces the existing corporate plan.
36
2002 Government Business Enterprises No. s. 27
Amendment
(j) by omitting subsections (8) and (9) and
substituting the following subsections:
(8) An amendment of a corporate plan
takes effect
(a) when it has been approved by both
the Portfolio Minister and
Treasurer; or
(b) if a day for its commencement is
specified in the approval of the
Portfolio Minister and Treasurer,
on that day.
(9) The approval of an amendment of a
corporate plan may specify that the
amendment is to take effect on
(a) the day when it has been approved
by both the Portfolio Minister and
Treasurer; or
(b) a later day; or
(c) an earlier day.
(k) by omitting from subsection (10) "otherwise
approves," and substituting "and Treasurer
jointly approve otherwise,".
Section 40 amended (Consultation with Portfolio
Minister and Treasurer)
27. Section 40 of the Principal Act is amended as follows:
(a) by inserting in subsection (1)(a) "jointly" after
"subsidiaries,";
37
s. 28 No. Government Business Enterprises 2002
Amendment
(b) by inserting in subsection (1)(a) "and
Treasurer" after "Minister";
(c) by inserting in subsection (2) "and Treasurer,
jointly," after "The Portfolio Minister";
(d) by omitting from subsection (2)(b) "considers"
and substituting "and Treasurer consider";
(e) by omitting subsection (4) and substituting the
following subsection:
(4) Subject to subsection (5), the Board
must comply with a direction given under this
section if it is in writing and is signed by both
the Portfolio Minister and Treasurer.
Section 41 amended (Statement of corporate intent)
28. Section 41(2) of the Principal Act is amended by
omitting "considers" and substituting "and Treasurer,
jointly, consider".
Section 45 amended (Borrowing from Treasurer)
29. Section 45(2) of the Principal Act is amended by
omitting "Stakeholder Minister and".
Section 52 amended (Financial statements)
30. Section 52 of the Principal Act is amended as follows:
(a) by omitting subsection (2);
(b) by omitting paragraph (a) from subsection (3)
and substituting the following paragraph:
38
2002 Government Business Enterprises No. s. 31
Amendment
(a) contain the documents, statements
and information required by, and
otherwise comply with, the
Treasurer's Instructions; and
(c) by inserting in subsection (4) "and Treasurer,
jointly," after "Minister";
(d) by omitting from subsection (4) "the Portfolio
Minister considers" and substituting "they
consider".
Section 54 amended (Opinion of Auditor-General)
31. Section 54 of the Principal Act is amended by omitting
"Minister, the Stakeholder".
Section 55 amended (Annual report)
32. Section 55 of the Principal Act is amended by omitting
subsections (2), (3), (4) and (5) and substituting the
following subsections:
(2) The annual report must contain
(a) the details of any direction given under
section 65; and
(b) the details of any direction relating to a
dividend, interim dividend or special
dividend; and
(c) the details of any direction given under
section 40(2) or (3); and
(d) the details of any waiver granted under
Part 10 or 11; and
39
s. 33 No. Government Business Enterprises 2002
Amendment
(e) the documents, statements and
information required by the Treasurer's
Instructions.
(3) The annual report must comply with the
Treasurer's Instructions.
(4) The Portfolio Minister and the Treasurer,
jointly, may direct a Board to include in the annual
report any information that they consider
appropriate.
Section 58 amended (Additional information)
33. Section 58(1) of the Principal Act is amended by
omitting "Minister, at his or her discretion or on the
request of the Treasurer or the Stakeholder Minister," and
substituting "Minister and the Treasurer, jointly,".
Section 61 amended (Declaration of community
service obligation)
34. Section 61 of the Principal Act is amended by omitting
subsection (4) and substituting the following subsection:
(4) A declaration under subsection (2) takes
effect on the day specified in the declaration.
Section 62 amended (Costing basis for community
service obligation)
35. Section 62 of the Principal Act is amended by omitting
subsection (2) and substituting the following subsection:
40
2002 Government Business Enterprises No. s. 36
Amendment
(2) The costing basis must be in accordance
with the Treasurer's Instructions and is to be
provided to the Government Business Enterprise.
Section 63 substituted
36. Section 63 of the Principal Act is repealed and the
following section is substituted:
Funding of community service obligation
63. (1) The method and basis on which a
Government Business Enterprise will be funded in
whole or in part for undertaking a community
service obligation is to be determined by the
Treasurer in accordance with the Treasurer's
Instructions.
(2) Before determining the method and basis
on which a Government Business Enterprise will be
funded, the Treasurer is to consult the Portfolio
Minister and the Government Business Enterprise.
Section 64 amended (Review of costing basis and
funding arrangement)
37. Section 64(4) of the Principal Act is amended by
omitting "Stakeholder Minister, Portfolio Minister and
Treasurer, jointly," and substituting "Treasurer".
Section 64A inserted
38. After section 64 of the Principal Act, the following
section is inserted in Part 9:
41
s. 39 No. Government Business Enterprises 2002
Amendment
Amendment or revocation of declaration of
community service obligation
64A. (1) The Treasurer may amend or revoke, by
notice provided to the Government Business
Enterprise and the Portfolio Minister, a declaration
made under section 61(3).
(2) Before amending or revoking a declaration
made under section 61(3), the Treasurer must
consult with the Board and the Portfolio Minister.
(3) The amendment or revocation of a
declaration made under section 61(3) takes effect on
the day specified in the notice referred to in
subsection (1).
Section 80 amended (Penalty for late payment of
guarantee fee)
39. Section 80(1) of the Principal Act is amended by
omitting "until it is paid." and substituting "from that day
to and including the day on which it is paid.".
Section 83 amended (Recommendation for dividend
payable)
40. Section 83(1) of the Principal Act is amended by
omitting "Treasurer, the Stakeholder Minister" and
substituting "Treasurer".
Section 84 amended (Determination of dividend)
41. Section 84 of the Principal Act is amended by omitting
subsection (3) and substituting the following subsection:
42
2002 Government Business Enterprises No. s. 42
Amendment
(3) As soon as practicable after a
recommendation is approved, or a direction is given,
under subsection (1), the Government Business
Enterprise must be notified of the approval or
direction.
Section 85 amended (Interim dividend)
42. Section 85 of the Principal Act is amended as follows:
(a) by omitting subsection (5) and substituting the
following subsection:
(5) As soon as practicable after a
recommendation is approved, or a direction is
given, under subsection (3), the Government
Business Enterprise must be notified of the
approval or direction.
(b) by omitting from subsection (6) "the Treasurer
and".
Section 86 amended (Special dividend)
43. Section 86 of the Principal Act is amended by omitting
subsection (5) and substituting the following subsection:
(5) Within 5 sitting days after giving a
direction under subsection (1), the Treasurer must
lay a copy of the direction before each House of
Parliament.
43
s. 44 No. Government Business Enterprises 2002
Amendment
Section 88 amended (Penalty for late payment of
dividend, interim dividend or special dividend)
44. Section 88(1) of the Principal Act is amended by
omitting "until it is paid." and substituting "from that day
to and including the day on which it is paid.".
Section 97 amended (Transfer of Crown land)
45. Section 97(6) of the Principal Act is amended by
omitting "joint recommendation of the Stakeholder
Minister and" and substituting "recommendation of the".
Section 98 amended (Transfer of property other
than Crown land)
46. Section 98(8) of the Principal Act is amended by
omitting "joint recommendation of the Stakeholder
Minister and" and substituting "recommendation of the".
Section 107 amended (Service of documents)
47. Section 107 of the Principal Act is amended by
omitting subsection (2).
Section 114 amended (Treasurer's Instructions)
48. Section 114(1)(g) of the Principal Act is amended by
omitting "expressly".
44
2002 Government Business Enterprises No. s. 49
Amendment
Section 117 amended (Validity of act not affected by
failure to consult, &c.)
49. Section 117 of the Principal Act is amended by
omitting "Minister, Stakeholder".
Section 118 amended (Delegation by Portfolio
Minister or Treasurer)
50. Section 118(1) of the Principal Act is amended by
omitting paragraph (a).
Section 120 amended (Regulations)
51. Section 120(5) of the Principal Act is amended by
omitting "Stakeholder Minister,".
Sections 121, 122, 122A and 123 repealed
52. Sections 121, 122, 122A and 123 of the Principal Act
are repealed.
Schedule 5 amended (Directors)
53. Schedule 5 to the Principal Act is amended as follows:
(a) by inserting in clause 2(1) "who is not also the
chief executive officer" after "director";
(b) by inserting the following subclause after
subclause (1) in clause 2:
(1A) A director who is also the chief
executive officer holds the office of director
while he or she is the chief executive officer.
45
s. 53 No. Government Business Enterprises 2002
Amendment
(c) by inserting in clause 8(1) "and Treasurer,
jointly," after "The Portfolio Minister";
(d) by omitting paragraph (a) from clause 8(1);
(e) by omitting from clause 8(1)(b) "pecuniary
interest as required under clause 7 of Schedule
6" and substituting "material personal
interest";
(f) by omitting from clause 8(1)(e) "considers" and
substituting "and Treasurer consider";
(g) by omitting from clause 8(1)(f) "considers" and
substituting "and Treasurer consider";
(h) by omitting from clause 8(1)(i) "years." and
substituting "years; or";
(i) by inserting the following paragraphs after
paragraph (i) in clause 8(1):
(j) the director fails to comply with a
requirement under section 28D; or
(k) the Portfolio Minister and
Treasurer consider it appropriate
or necessary to do so for any other
reason.
(j) by inserting in clause 8(2) "joint" after "on
the";
(k) by inserting in clause 8(2) "and Treasurer"
after "Minister";
(l) by omitting subclause (3) from clause 8.
46
2002 Government Business Enterprises No. s. 54
Amendment
Schedule 6 amended (Meetings of Board)
54. Schedule 6 to the Principal Act is amended by
omitting clause 7.
Schedule 8 amended (Government Business
Enterprises that are not the Crown)
55. Schedule 8 to the Principal Act is amended as follows:
(a) by omitting
Hydro-Electric Commission
and substituting the following item:
Hydro-Electric Corporation
(b) by omitting the following item:
Hydro-Electric Commission Enterprises Corporation
(c) by omitting the following item:
Totalizator Agency Board
Schedule 9 repealed
56. Schedule 9 to the Principal Act is repealed.
47
s. 57 No. Government Business Enterprises 2002
Amendment
Substitutions
57. Each of the provisions of the Principal Act specified in
Column 1 of Schedule 1 is amended by omitting
"Stakeholder Minister" on the number of occurrences
specified in Column 2 of that Schedule and substituting
"Treasurer".
48
2002 Government Business Enterprises No. sch. 1
Amendment
SCHEDULE 1 SUBSTITUTIONS
Section 57
Column 1 Column 2
Provision amended Number of
occurrences
Paragraph (b) of the definition 1
of "financial year" in section
3(1)
Section 7(2) 1
Section 7(3) 1
Section 10(1)(b) 1
Section 10(2) 1
Section 10(3) 1
Section 10(4) 1
Section 10(5) 1
Section 10(6) 1
Section 10(7) 1
Section 13(1) 1
Section 25(3)(e) 1
Section 40(1)(b) 1
Section 40(3) 1
Section 51(c) 1
Section 53(1) 1
49
sch. 1 No. Government Business Enterprises 2002
Amendment
Column 1 Column 2
Provision amended Number of
occurrences
Section 53(3) first only
Section 53(3)(b) 1
Section 53(4) 1
Section 55(6) 1
Section 57(2) first only
Section 57(2)(b) 1
Section 60(1) 1
Section 60(5) 1
Section 61(1)(a) 1
Section 61(1)(b) 1
Section 61(1)(c) 1
Section 61(2) 1
Section 61(3) 2
Section 62(1) 1
Section 64(1) 1
Section 64(2) 1
Section 64(3) 1
Section 65(1) 1
Section 65(3) 1
50
2002 Government Business Enterprises No. sch. 1
Amendment
Column 1 Column 2
Provision amended Number of
occurrences
Section 65(6)(c) 1
Section 65(7) 1
Section 84(1) 1
Section 84(2) 1
Section 84(4) 1
Section 85(1) 1
Section 85(2) 1
Section 85(3) 1
Section 85(4) 1
Section 85(6) 1
Section 86(1) 1
Section 86(2) 1
Section 88(2) 1
Section 89(1) 1
Section 89(2) 1
Section 89(3) 2
Section 89(4) 2
Section 89(5) 4
Section 97(1)(a) 1
51
sch. 1 No. Government Business Enterprises 2002
Amendment
Column 1 Column 2
Provision amended Number of
occurrences
Section 98(2) 1
Section 102(1) 1
Clause 8(4) of Schedule 5 1
Clause 2(1) of Schedule 7 1
52 Government Printer, Tasmania