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TASMANIA
__________
GOVERNMENT BUSINESS ENTERPRISES
(SALE) BILL 2003
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Objects of Act
4. Interpretation
5. Act binds Crown
6. Relationship with Government Business Enterprises Act
1995
PART 2 SALE OF BUSINESS OF PRESCRIBED
GOVERNMENT BUSINESS ENTERPRISES
7. Power to sell business
8. Treasurer may direct Board to facilitate sale
9. Transitional provisions if business sold
10. Arrangements for employees affected by sale of business
11. Long service leave
12. Superannuation
13. Exemption from State tax
[Bill 43]-X
PART 3 FORMATION AND SALE OF COMPANIES
Division 1 Formation of company
14. Formation of companies
15. Membership of company
16. Shares
17. Transfer of business on formation of company
18. Arrangements for employees on formation of company
19. Exemption from State tax
Division 2 Operation of company
20. Application of Division 2
21. Status of company
22. Guarantee or indemnity
23. Fees in respect of guarantee and indemnity
24. Tax equivalents
25. Audit
26. Treasurer's Instructions
27. Effect of Financial Agreement Act 1994
28. Superannuation for employees
29. Long service leave
30. Arrangements with Treasurer
Division 3 Sale of company
31. Sale of company
32. Long service leave
33. Superannuation
34. Exemption from State tax
PART 4 TRANSFER OF BUSINESS TO CROWN
35. Transfer of business to Crown
36. Arrangements for employees on transfer of business
37. Exemption from State tax
2
PART 5 PROCEEDS OF SALE OF BUSINESS OR
SHARES
38. Proceeds of sale of business or shares
PART 6 MISCELLANEOUS
39. Repeal of Portfolio Acts
40. Regulations
41. Administration of Act
42. Freedom of Information Act 1991 amended
3
4
GOVERNMENT BUSINESS ENTERPRISES
(SALE) BILL 2003
(Brought in by the Minister for Education, the Honourable
Paula Catherine Wriedt)
A BILL FOR
An Act to authorise, enable and facilitate the sale of
the businesses or assets of the Civil Construction
Services Corporation, the Stanley Cool Stores Board
and the Tasmanian Grain Elevators Board, to
provide for the repeal of the Portfolio Acts of those
Government Business Enterprises 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 Government Business
Enterprises (Sale) Act 2003.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
[Bill 43] 5
s. 3 No. Government Business Enterprises (Sale) 2003
Objects of Act
3. The objects of this Act are to enable the Crown to do
any one or more of the following:
(a) sell the whole or part of a prescribed
Government Business Enterprise;
(b) transfer to the Crown any business of a
prescribed Government Business Enterprise
that remains with the prescribed Government
Business Enterprise after its other business is
sold;
(c) form a company under the Corporations Act
and transfer to that company the business of a
prescribed Government Business Enterprise;
(d) transfer to the Crown any business of a
prescribed Government Business Enterprise
that remains with the prescribed Government
Business Enterprise after its other business is
transferred to such a company;
(e) sell the shares in such a company that are
held on behalf of the Crown.
Interpretation
4. (1) In this Act, unless the contrary intention appears
"Board" has the same meaning as in the
Government Business Enterprises Act 1995;
"business", in relation to a prescribed Government
Business Enterprise or relevant prescribed
Government Business Enterprise, includes
(a) the business conducted by the prescribed
Government Business Enterprise or
6
2003 Government Business Enterprises (Sale) No. s. 4
relevant prescribed Government
Business Enterprise; and
(b) the goodwill of that business; and
(c) the property of the prescribed
Government Business Enterprise or
relevant prescribed Government
Business Enterprise; and
(d) the liabilities of the prescribed
Government Business Enterprise or
relevant prescribed Government
Business Enterprise in relation to that
business; and
(e) a part of the business of a prescribed
Government Business Enterprise or
relevant prescribed Government
Business Enterprise
but does not include a part of the business of a
prescribed Government Business Enterprise or
relevant prescribed Government Business
Enterprise that the regulations exclude from
the operation of this Act;
"business sale date" means the day on which the
business of a prescribed Government Business
Enterprise is sold under section 7(1);
"company" means a company formed under
section 14;
"existing document" means
(a) in relation to the sale under section 7(1)
of the business of a prescribed
Government Business Enterprise, a
document that was in effect immediately
before the business sale date; or
7
s. 4 No. Government Business Enterprises (Sale) 2003
(b) in relation to the transfer under
section 17 of the business of a relevant
prescribed Government Business
Enterprise to a company, a document
that was in effect immediately before the
transfer day; or
(c) in relation to the transfer under
section 35 of the business of a prescribed
Government Business Enterprise or
relevant prescribed Government
Business Enterprise to the Crown, a
document that was in effect immediately
before the transfer day;
"Government Business Enterprise" has the same
meaning as in the Government Business
Enterprises Act 1995;
"legal proceeding" includes arbitration and
mediation;
"liability" means an actual, contingent or
prospective liability, duty or obligation;
"Part 3 transfer notice" means a notice made
under section 17(1);
"Part 4 transfer notice" means a notice made
under section 35(1);
"Portfolio Act" has the same meaning as in the
Government Business Enterprises Act 1995;
"Portfolio Minister" has the same meaning as in
the Government Business Enterprises Act
1995;
"prescribed Government Business Enterprise"
means
8
2003 Government Business Enterprises (Sale) No. s. 4
(a) the Civil Construction Services
Corporation established under the Civil
Construction Services Corporation Act
1994; or
(b) the Stanley Cool Stores Board
established under the Stanley Cool
Stores Act 1945; or
(c) the Tasmanian Grain Elevators Board
constituted under the Grain Reserve Act
1950;
"property" means any present or future, vested or
contingent, legal or equitable estate or interest
in real or personal property and includes
money, documents, securities, choses in action
and other rights, powers, privileges and
immunities (whether actual, contingent or
prospective);
"purchased business" means the business of a
prescribed Government Business Enterprise
that is sold under section 7(1);
"purchaser" means a person who purchases the
business of a prescribed Government Business
Enterprise sold under section 7 or a related
body corporate, within the meaning of the
Corporations Act, of that person;
"relevant prescribed Government Business
Enterprise" means the prescribed
Government Business Enterprise whose
business is transferred to a company under
section 17;
"State tax" means any tax, duty, charge or
application, registration or other fee imposed
by an Act or other law of Tasmania;
9
s. 4 No. Government Business Enterprises (Sale) 2003
"subsidiary" has the same meaning as in the
Corporations Act;
"transfer day" means
(a) in Part 3, the day specified in a Part 3
transfer notice as the day on which that
transfer notice takes effect; or
(b) in Part 4, the day specified in a Part 4
transfer notice as the day on which that
transfer notice takes effect;
"transferred business" means
(a) in Part 3, the whole, or any part, of the
business of a prescribed Government
Business Enterprise specified in, and
transferred by, a Part 3 transfer notice;
or
(b) in Part 4, the whole, or any part, of the
business of a prescribed Government
Business Enterprise specified in, and
transferred by, a Part 4 transfer notice;
"transferred employee" means
(a) in Part 2, a person whose employment is
transferred under section 10 consequent
on the sale of the business of a
prescribed Government Business
Enterprise under section 7(1); or
(b) in Part 3, a person whose employment is
transferred under section 18 consequent
on the transfer of the business of a
relevant prescribed Government
Business Enterprise under section 17.
10
2003 Government Business Enterprises (Sale) No. s. 5
(2) In this Act, a reference to a person employed by a
prescribed Government Business Enterprise or a relevant
prescribed Government Business Enterprise is a reference
to a person employed by that Government Business
Enterprise under section 21(1) of the Government Business
Enterprises Act 1995.
Act binds Crown
5. This Act binds the Crown in right of Tasmania and, so
far as the legislative power of Parliament permits, in all
its other capacities.
Relationship with Government Business Enterprises
Act 1995
6. If a provision of this Act is inconsistent with a provision
of the Government Business Enterprises Act 1995 as it
applies in respect of a prescribed Government Business
Enterprise, the provision of this Act prevails and the
provision of the Government Business Enterprises Act 1995
is invalid to the extent of the inconsistency.
11
s. 7 No. Government Business Enterprises (Sale) 2003
PART 2 SALE OF BUSINESS OF PRESCRIBED
GOVERNMENT BUSINESS ENTERPRISES
Power to sell business
7. (1) On behalf of the Crown, the Treasurer may sell the
whole or any part of the business of a prescribed
Government Business Enterprise to any person on any
conditions the Treasurer considers appropriate.
(2) Without limiting the generality of subsection (1),
the Treasurer may sell or grant in conjunction with any
sale under that subsection a right to use any name, trade
mark, service mark, indicia or other property
(a) that is used for the purposes of the business of
the prescribed Government Business
Enterprise; or
(b) that the purchaser would not otherwise be
permitted to use.
(3) In exercising a power under this section to sell
the business of a prescribed Government Business
Enterprise or to sell or grant a right or other property, the
Treasurer is to have regard to
(a) the achievement of a fair and reasonable price
for the business, right or other property sold or
granted; and
(b) the preservation of accrued entitlements of
employees of the prescribed Government
Business Enterprise.
12
2003 Government Business Enterprises (Sale) No. s. 8
Treasurer may direct Board to facilitate sale
8. (1) By written notice provided to a prescribed
Government Business Enterprise, the Treasurer may
direct the prescribed Government Business Enterprise or
its Board to do one or more of the following to facilitate the
sale of the business of the prescribed Government
Business Enterprise under section 7(1):
(a) take the action specified in the notice;
(b) take all reasonable steps and actions.
(2) A prescribed Government Business Enterprise
and its Board are to comply with a direction provided
under subsection (1).
(3) A prescribed Government Business Enterprise
and its Board may do all things necessary or convenient to
be done to enable them to comply with a direction provided
under subsection (1).
Transitional provisions if business sold
9. (1) If the business of a prescribed Government Business
Enterprise is sold under section 7(1), on and after the
business sale date the following provisions apply except as
otherwise agreed, in writing, by the Treasurer and the
purchaser:
(a) a reference in an existing document to the
prescribed Government Business Enterprise or
the Board of the prescribed Government
Business Enterprise in relation to the business
that became the purchased business is taken,
where appropriate, to be or to include a
reference to the purchaser;
13
s. 9 No. Government Business Enterprises (Sale) 2003
(b) legal proceedings that could have been
instituted by or against the prescribed
Government Business Enterprise immediately
before the business sale date and that relate to
the business that became the purchased
business may be instituted by or against the
purchaser;
(c) legal proceeding instituted by or against the
prescribed Government Business Enterprise
that relate to the business that became the
purchased business and are pending
immediately before the business sale date may
be continued by or against the purchaser;
(d) a document served on the prescribed
Government Business Enterprise in respect of
legal proceedings referred to in paragraph (c)
is taken to have been served on the purchaser;
(e) a judgment or order of a court obtained by or
against the prescribed Government Business
Enterprise in relation to the business that
became the purchased business may be
enforced by or against the purchaser but may
not be enforced by or against the prescribed
Government Business Enterprise;
(f) a contract made by the prescribed Government
Business Enterprise relating to the business
that became the purchased business but not
performed or discharged before the business
sale date is taken to have been made by the
purchaser.
(2) A person who is a party to a contract made by a
prescribed Government Business Enterprise is not entitled
to
(a) terminate that contract; or
14
2003 Government Business Enterprises (Sale) No. s. 10
(b) claim that there has been a breach or default
of the contract; or
(c) claim any remedy
by reason only of the sale under section 7(1) of a business
to which that contract, or part of that contract, relates or
which arises from that contract or part.
Arrangements for employees affected by sale of
business
10. (1) If the Treasurer sells the business of a prescribed
Government Business Enterprise under section 7(1), the
Treasurer may, by order provided to the prescribed
Government Business Enterprise
(a) transfer to the purchaser the employment of a
person who, immediately before the business
sale date, was employed by the prescribed
Government Business Enterprise or under the
State Service Act 2000 for the purposes of that
business; or
(b) terminate on any conditions the Treasurer
considers appropriate the employment of a
person who, immediately before the business
sale date, was employed by the prescribed
Government Business Enterprise for the
purposes of that business.
(2) If a person employed under the State Service Act
2000 for the purposes of a prescribed Government
Business Enterprise does not have his or her employment
transferred in accordance with section 10(1)(a), that
person remains in employment under and subject to the
State Service Act 2000.
15
s. 10 No. Government Business Enterprises (Sale) 2003
(3) Before transferring or terminating the
employment of a person under subsection (1), the
Treasurer is to consult with the person in any manner the
Treasurer considers appropriate including, but not limited
to, consultation with the representatives of the person or
the employee organisation to which the person belongs.
(4) In terminating the employment of a person
under subsection (1)(b), the Treasurer is to do so subject
to, and in accordance with, any relevant contract, award or
agreement.
(5) On receipt of an order under subsection (1), the
prescribed Government Business Enterprise is to give to
each person whose employment is transferred or
terminated by the order written notice of that transfer or
termination.
(6) On the sale of the business of the prescribed
Government Business Enterprise, or on the day specified
in the order under subsection (1) as the day on which the
employment of a person is transferred
(a) if the order transfers the employment to the
purchaser, that person becomes an employee
of the purchaser and the purchaser becomes
the employer of that person; and
(b) that person ceases
(i) to be an employee of the prescribed
Government Business Enterprise; or
(ii) to hold office or be an employee under
the State Service Act 2000.
(7) A transferred employee
(a) is taken to have been employed by the
purchaser for the same remuneration as he or
16
2003 Government Business Enterprises (Sale) No. s. 10
she was receiving immediately before the
transfer; and
(b) except where an award, agreement or any
other law otherwise provides, retains all
accrued entitlements as if employment as an
employee of the purchaser were a continuation
of employment with the prescribed
Government Business Enterprise or as a State
Service officer or State Service employee; and
(c) is entitled to claim those entitlements against
the purchaser; and
(d) is not entitled to any compensation or other
payment in respect of the change of employer
except as provided by the Retirement Benefits
Act 1993 or the Public Sector Superannuation
Reform Act 1999.
(8) An award or agreement that had effect in
relation to a person immediately before the person became
a transferred employee continues to have effect in relation
to the person as a transferred employee, except where
another award or agreement or any other law provides
otherwise.
(9) The period of service of a person who becomes a
transferred employee with the prescribed Government
Business Enterprise or as a State Service officer or State
Service employee is taken to be service with the purchaser.
(10) Nothing in this section prevents any of the
terms of employment of a transferred employee being
altered by an award, agreement or law after he or she
becomes a transferred employee.
(11) If an order under subsection (1) terminates the
employment of a person employed by a prescribed
Government Business Enterprise
17
s. 11 No. Government Business Enterprises (Sale) 2003
(a) that employment is terminated immediately
before the business of the prescribed
Government Business Enterprise is sold or on
the day specified in the order; and
(b) that person is not entitled to any
compensation or other payment in respect of
the termination of employment except as
provided by the Retirement Benefits Act 1993
or the Public Sector Superannuation Reform
Act 1999, any other law, an award, an
agreement or the conditions determined by the
Treasurer under subsection (1)(b).
(12) An order under subsection (1) is not a statutory
rule for the purposes of the Rules Publication Act 1953.
Long service leave
11. (1) The Long Service Leave (State Employees) Act 1994
does not apply to a transferred employee or a purchaser.
(2) Except as otherwise agreed, in writing, by the
Treasurer and the purchaser, in calculating the period of
service a transferred employee has completed with the
purchaser for the purposes of calculating his or her
entitlement to long service leave under any Act, award or
agreement, the transferred employee is taken to have
completed, on the day on which he or she becomes the
employee of the purchaser, a period of service with the
purchaser calculated in accordance with the following
formula:
where:
18
2003 Government Business Enterprises (Sale) No. s. 12
"Calculated service" is the period of service the
transferred employee is taken to have
completed with the purchaser on the day on
which he or she becomes the employee of the
purchaser;
"S" is the total period of service the transferred
employee has completed with the prescribed
Government Business Enterprise (including
service the transferred employee is taken to
have completed with the prescribed
Government Business Enterprise) or under the
State Service Act 2000;
"P" is the period of service that would have been
required to be completed by the transferred
employee to be entitled to long service leave
under the relevant Act, award or agreement if
the transferred employee had always been an
employee of the purchaser.
Superannuation
12. If the Treasurer makes an order under section 10(1)
on the sale of the business of a prescribed Government
Business Enterprise that transfers to the purchaser the
employment of a person employed by the prescribed
Government Business Enterprise, the Minister
administering the Retirement Benefits Act 1993 is to make
a declaration under regulation 3(1A) of the Retirement
Benefits Regulations 1994 declaring the agreement for that
sale to be a prescribed arrangement for the purposes of
those regulations.
19
s. 13 No. Government Business Enterprises (Sale) 2003
Exemption from State tax
13. (1) The Treasurer may determine that State tax is not
payable in respect of any document prepared in relation to,
or for the purposes of, the sale of the business of a
prescribed Government Business Enterprise under
section 7(1) or the sale or grant of a right under
section 7(2).
(2) A determination is to be made by certificate
provided to the person who would otherwise be required to
pay the State tax.
20
2003 Government Business Enterprises (Sale) No. s. 14
PART 3 FORMATION AND SALE OF COMPANIES
Division 1 Formation of company
Formation of companies
14. (1) The Treasurer may form, or participate in the
formation of, one or more companies limited by shares that
is or are to be registered under the Corporations Act, with
each company having as its primary purposes the business
of, or one or more of the functions performed by, a
prescribed Government Business Enterprise.
(2) By written notice provided to a prescribed
Government Business Enterprise, the Treasurer may
direct the prescribed Government Business Enterprise or
its Board to do one or more of the following for the purpose
of facilitating the formation under subsection (1) of a
company in respect of the business of, or a function
performed by, the prescribed Government Business
Enterprise:
(a) take the action specified in the notice;
(b) take all reasonable steps and actions.
(3) A prescribed Government Business Enterprise
and its Board are to comply with a directions provided
under subsection (2).
(4) A prescribed Government Business Enterprise
and its Board may do all things necessary or convenient to
be done to enable them to comply with a direction provided
under subsection (2).
21
s. 15 No. Government Business Enterprises (Sale) 2003
Membership of company
15. On the registration of a company formed in respect of
the business of, or a function performed by, a prescribed
Government Business Enterprise, the company is to have
as its only member the Treasurer.
Shares
16. (1) The consideration for shares in a company that are
issued to the Treasurer is the sum of $1 for each share
issued.
(2) Shares in a company issued to the Treasurer are
held in trust for the Crown.
(3) The Treasurer must not acquire shares in a
company for his or her own benefit.
(4) Any share acquired by the Treasurer in
contravention of subsection (3) is taken to be held in trust
for the Crown but the Crown is not liable to meet the cost
of that acquisition.
Transfer of business on formation of company
17. (1) If a company is formed in respect of the business
of, or a function performed by, a prescribed Government
Business Enterprise, the Treasurer, by one or more notices
published in the Gazette, may
(a) transfer the whole, or any part, of the business
of the prescribed Government Business
Enterprise to the company (whether or not
that transfer is for a consideration); and
(b) specify conditions relating to that transfer;
and
22
2003 Government Business Enterprises (Sale) No. s. 17
(c) provide for any matter that is incidental to
that transfer.
(2) A Part 3 transfer notice may be made in
anticipation of the formation of a company.
(3) Consideration for the transfer under a Part 3
transfer notice of any transferred business may be by
assumption of liabilities or otherwise.
(4) On the transfer day, a Part 3 transfer notice
takes effect and
(a) any business of a relevant prescribed
Government Business Enterprise, other than a
liability, specified in and transferred by a Part
3 transfer notice vests in the company; and
(b) any business of a relevant prescribed
Government Business Enterprise that is a
liability and is specified in and transferred by
a Part 3 transfer notice becomes the liability of
the company.
(5) Except as otherwise provided in a Part 3 transfer
notice, on and after the transfer day the following
provisions apply:
(a) a reference in an existing document to the
relevant prescribed Government Business
Enterprise, or the Board of the relevant
prescribed Government Business Enterprise,
in relation to the business that became the
transferred business is taken, where
appropriate, to be or to include a reference to
the company or the Board of the company;
(b) legal proceedings that could have been
instituted by or against the relevant
prescribed Government Business Enterprise
immediately before the transfer day and that
23
s. 17 No. Government Business Enterprises (Sale) 2003
relate to the business that became the
transferred business may be instituted by or
against the company;
(c) legal proceedings instituted by or against the
relevant prescribed Government Business
Enterprise that relate to the business that
became the transferred business and are
pending immediately before the transfer day
may be continued by or against the company;
(d) a document served on the relevant prescribed
Government Business Enterprise in respect of
legal proceedings referred to in paragraph (c)
is taken to have been served on the company;
(e) a judgment or order of a court obtained by or
against the relevant prescribed Government
Business Enterprise in relation to the business
that became the transferred business may be
enforced by or against the company but may
not be enforced by or against the relevant
prescribed Government Business Enterprise;
(f) a contract made by the relevant prescribed
Government Business Enterprise relating to
the business that became the transferred
business but not performed or discharged
before the transfer day is taken to have been
made by the company.
(6) A person who is a party to a contract made by a
relevant prescribed Government Business Enterprise is
not entitled to
(a) terminate that contract; or
(b) claim that there has been a breach or default
of the contract; or
(c) claim any remedy
24
2003 Government Business Enterprises (Sale) No. s. 18
by reason only of the transfer, under this section, of any
business to which that contract, or part of that contract,
relates or which arises from that contract or a part of that
contract.
(7) If any dispute arises
(a) as to whether any business of a relevant
prescribed Government Business Enterprise is
transferred business; or
(b) as to whether any, or any part of any, contract
relates to transferred business
the Treasurer may determine the matter and is to provide
the relevant prescribed Government Business Enterprise
and any company interested in the matter with written
notice of that determination.
(8) The determination of the Treasurer under
subsection (7) is final and is binding on all persons
receiving notice of it under that subsection.
(9) A Part 3 transfer notice is not a statutory rule for
the purposes of the Rules Publication Act 1953.
Arrangements for employees on formation of
company
18. (1) If the business of a prescribed Government
Business Enterprise is transferred to a company under
section 17, the Treasurer may, by order provided to that
Government Business Enterprise
(a) transfer to the company the employment of a
person who, immediately before the transfer
day, was employed by that Government
Business Enterprise or under the State Service
Act 2000 for the purposes of that business; or
25
s. 18 No. Government Business Enterprises (Sale) 2003
(b) terminate on any conditions the Treasurer
considers appropriate the employment of a
person who, immediately before the transfer
day, was employed by that Government
Business Enterprise for the purposes of that
business.
(2) If a person employed under the State Service Act
2000 for the purposes of a relevant prescribed Government
Business Enterprise does not have his or her employment
transferred in accordance with section 18(1)(a), that
person remains in employment under and subject to the
State Service Act 2000.
(3) In terminating the employment of a person
under subsection (1), the Treasurer is to do so subject to,
and in accordance with, any relevant contract, award or
agreement.
(4) On receipt of an order under subsection (1), the
relevant prescribed Government Business Enterprise is to
give to each person whose employment is transferred or
terminated by the order written notice of that transfer or
termination.
(5) On the transfer day, or on the day specified in
the order under subsection (1) as the day on which the
employment of a person is transferred
(a) if the order transfers the employment to a
company, that person becomes an employee of
the company and the company becomes the
employer of that person; and
(b) that person ceases
(i) to be an employee of the relevant
prescribed Government Business
Enterprise; or
26
2003 Government Business Enterprises (Sale) No. s. 18
(ii) to hold office or be an employee under
the State Service Act 2000.
(6) If a transfer order transfers the employment of a
person to a company, that transferred employee
(a) is taken to have been employed by the
company for the same remuneration as he or
she was receiving immediately before the
transfer; and
(b) except where an award, agreement or any
other law otherwise provides, retains all
accrued entitlements as if employment as an
employee of the company were a continuation
of employment with the relevant prescribed
Government Business Enterprise; and
(c) is entitled to claim those entitlements against
the company; and
(d) is not entitled to any compensation or other
payment in respect of the change of employer
except as provided by the Retirement Benefits
Act 1993 or the Public Sector Superannuation
Reform Act 1999.
(7) An award or agreement that had effect in
relation to a person immediately before the person became
a transferred employee continues to have effect in relation
to the person as a transferred employee, except where
another award or agreement or any other law provides
otherwise.
(8) The period of service of a person who becomes a
transferred employee with the relevant prescribed
Government Business Enterprise or as a State Service
officer or State Service employee is taken to be service
with the company.
27
s. 19 No. Government Business Enterprises (Sale) 2003
(9) Nothing in this section prevents any of the terms
of employment of a transferred employee being altered by
an award, agreement or law after he or she becomes a
transferred employee.
(10) If an order under subsection (1) terminates the
employment of a person employed by a relevant prescribed
Government Business Enterprise
(a) that employment is terminated immediately
before the transfer day or on the day specified
in the order; and
(b) that person is not entitled to any
compensation or other payment in respect of
the termination of employment except as
provided by the Retirement Benefits Act 1993
or the Public Sector Superannuation Reform
Act 1999, any other law, an award, an
agreement or the conditions determined by the
Treasurer under subsection (1)(b).
(11) An order under subsection (1) is not a statutory
rule for the purposes of the Rules Publication Act 1953.
Exemption from State tax
19. State tax is not payable in respect of
(a) any document prepared in relation to, or for
the purposes of, the formation of a company
under section 14; or
(b) a Part 3 transfer notice; or
(c) any other document prepared in relation to, or
for the purposes of, a Part 3 transfer notice or
the transfer of the business of a relevant
28
2003 Government Business Enterprises (Sale) No. s. 20
prescribed Government Business Enterprise to
a company.
Division 2 Operation of company
Application of Division 2
20. This Division only applies to a company while all
shares in the company are held by the Treasurer.
Status of company
21. (1) Unless this or any other Act expressly provides
otherwise, a company or a subsidiary of a 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 or entitled to any prerogative
right or privilege of the Crown.
(2) The Crown is not liable for any liability or
obligation of a company or subsidiary of a company unless
the Treasurer gives a guarantee or indemnity under
section 22.
Guarantee or indemnity
22. (1) On the written request of a company or its
subsidiary, the Treasurer, in writing, may guarantee or
give an indemnity, or guarantee and give an indemnity, in
relation to
29
s. 23 No. Government Business Enterprises (Sale) 2003
(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) 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, incidental to or arising
from an obligation undertaken or agreed to be
undertaken; and
(b) is subject to any conditions the Treasurer
determines.
(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, agreed to be
undertaken or required to be repaid or performed.
Fees in respect of guarantee and indemnity
23. The provisions of Division 1 of Part 11 of the
Government Business Enterprises Act 1995 apply in
relation to a company and a subsidiary of that company as
if
(a) the company or subsidiary were a Government
Business Enterprise specified in Schedule 3 to
that Act; and
30
2003 Government Business Enterprises (Sale) No. s. 24
(b) a reference to financial accommodation in that
Division were a reference to a financial benefit
arising from a guarantee given under
section 22.
Tax equivalents
24. The provisions of Part 10 of the Government Business
Enterprises Act 1995 apply in relation to a company and a
subsidiary of that company as if
(a) the company were a Government Business
Enterprise specified in Schedule 2 to that Act;
and
(b) the subsidiary were a subsidiary within the
meaning of that Act.
Audit
25. The Auditor-General continues to act as the auditor
for a company until the members of the company appoint
another person as auditor for the company.
Treasurer's Instructions
26. 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 and guarantee fees and
other related matters apply to a company or its subsidiary
as if the company or subsidiary were a Government
Business Enterprise under that Act.
31
s. 27 No. Government Business Enterprises (Sale) 2003
Effect of Financial Agreement Act 1994
27. If the Treasurer, under section 5(1) of the Financial
Agreement Act 1994, requires a company to do or refrain
from doing anything for the purposes of implementing the
Agreement, within the meaning of that Act, the company
is to comply with that requirement.
Superannuation for employees
28. (1) A company
(a) may make contributions to one or more
superannuation schemes that comply with the
law of the Commonwealth relating to
superannuation; and
(b) may participate in a superannuation scheme
provided by the Retirement Benefits Act 1993
or the Public Sector Superannuation Reform
Act 1999.
(2) A contribution made to a complying
superannuation scheme in accordance with
subsection (1)(a) in respect of an employee (excluding a
transferred employee) is not to be in excess of the rate
specified in section 6(7) of the Public Sector
Superannuation Reform Act 1999.
(3) If a company under subsection (1)(b) participates
in a superannuation scheme provided by the Retirement
Benefits Act 1993 or the Public Sector Superannuation
Reform Act 1999, the company is taken to be a prescribed
authority for the purposes of those Acts in respect of any of
its employees who are subject to the scheme.
(4) If a company participates in a superannuation
scheme provided by the Retirement Benefits Act 1993 or
the Public Sector Superannuation Reform Act 1999, the
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2003 Government Business Enterprises (Sale) No. s. 29
company is to comply with any instruction relating to
superannuation given to it by the Minister administering
those Acts.
(5) A company must not establish a superannuation
scheme.
Long service leave
29. If an Act regulating long service leave of employees
applied to a person immediately before he or she became a
transferred employee, that Act continues to apply to that
person as a transferred employee.
Arrangements with Treasurer
30. (1) The company and the Treasurer may enter into an
agreement under which the company or its subsidiary
agrees to perform, or to cease to perform, activities.
(2) The terms of the agreement may provide for
compensation or other payment to the company or its
subsidiary out of money provided by Parliament for the
purpose.
Division 3 Sale of company
Sale of company
31. (1) The Treasurer may sell, on any conditions he or
she considers appropriate, all the shares he or she holds in
a company.
(2) In exercising the power under this section to sell
shares in a company, the Treasurer is to have regard to
33
s. 32 No. Government Business Enterprises (Sale) 2003
(a) the achievement of a fair and reasonable price;
and
(b) the preservation of accrued entitlements of
employees of the company.
Long service leave
32. (1) On the sale by the Treasurer under section 31 of
all the shares he or she holds in a company, the Long
Service Leave (State Employees) Act 1994 ceases to apply to
that company and any of its employees in respect of which
that Act applied before that sale.
(2) In calculating, on or after the sale by the
Treasurer under section 31 of all the shares he or she
holds in a company, the period of service an employee has
completed with that company for the purposes of
calculating his or her entitlement to long service leave
under any Act, award or agreement, the employee is taken
to have completed, on the day on which that sale occurred,
a period of service with that company calculated in
accordance with the following formula:
where:
"Calculated service" is the period of service the
employee is taken to have completed with the
company on the day on which that sale
occurred;
"S" is the total period of service the employee has
completed with that company (including
service the employee is taken to have
completed with that company immediately
before the day on which that sale occurred);
34
2003 Government Business Enterprises (Sale) No. s. 33
"P" is the period of service that would have been
required to be completed by the employee to be
entitled to long service leave under the
relevant Act, award or agreement if all the
shares in that company had always been
owned by the person who purchased them in
that sale.
Superannuation
33. If the Treasurer under section 31 agrees to sell all the
shares he or she holds in a company, the Minister
administering the Retirement Benefits Act 1993 is to make
a declaration under regulation 3(1A) of the Retirement
Benefits Regulations 1994 declaring the agreement for that
sale to be a prescribed arrangement for the purposes of
those regulations.
Exemption from State tax
34. (1) The Treasurer may determine that State tax is not
payable in respect of any document prepared in relation to,
or for the purposes of, the sale of shares in a company
under section 31.
(2) A determination is to be made by certificate
provided to the person who would otherwise be required to
pay the State tax.
35
s. 35 No. Government Business Enterprises (Sale) 2003
PART 4 TRANSFER OF BUSINESS TO CROWN
Transfer of business to Crown
35. (1) If a part of the business of a prescribed
Government Business Enterprise is sold under section 7(1)
or a company is formed under section 14 in respect of the
business of, or a function performed by, a prescribed
Government Business Enterprise, the Treasurer, by one or
more notices published in the Gazette, may
(a) transfer to the Crown the whole or any part of
the remaining business of the prescribed
Government Business Enterprise or relevant
prescribed Government Business Enterprise
(whether or not that transfer is for a
consideration); and
(b) specify conditions relating to that transfer;
and
(c) provide for any matter that is incidental to
that transfer.
(2) A Part 4 transfer notice may be made in
anticipation of the sale under section 7(1) of a part of the
business of a prescribed Government Business Enterprise
or the formation under section 14 of a company.
(3) Consideration for the transfer under a Part 4
transfer notice of any transferred business may be by
assumption of liabilities or otherwise.
(4) On the transfer day
(a) any business of a relevant prescribed
Government Business Enterprise, other than a
liability, specified in and transferred by the
Part 4 transfer notice vests in the Crown; and
36
2003 Government Business Enterprises (Sale) No. s. 35
(b) any business of a relevant prescribed
Government Business Enterprise that is a
liability and is specified in and transferred by
the Part 4 transfer notice becomes the liability
of the Crown.
(5) Except as otherwise provided in a Part 4 transfer
notice, on and after the transfer day the following
provisions apply:
(a) a reference in an existing document to the
prescribed Government Business Enterprise or
relevant prescribed Government Business
Enterprise, or the Board of that Government
Business Enterprise, in relation to the
business that became the transferred business
is taken, where appropriate, to be or to include
a reference to the Crown;
(b) legal proceedings that could have been
instituted by or against the prescribed
Government Business Enterprise or the
relevant prescribed Government Business
Enterprise immediately before the transfer
day and that relate to the business that
became the transferred business may be
instituted by or against the Crown;
(c) legal proceedings instituted by or against the
prescribed Government Business Enterprise or
the relevant prescribed Government Business
Enterprise that relate to the business that
became the transferred business and are
pending immediately before the transfer day
may be continued by or against the Crown;
(d) a document served on the prescribed
Government Business Enterprise or the
relevant Government Business Enterprise in
respect of legal proceedings referred to in
37
s. 35 No. Government Business Enterprises (Sale) 2003
paragraph (c) is taken to have been served on
the Crown;
(e) a judgment or order of a court obtained by or
against the prescribed Government Business
Enterprise or the relevant prescribed
Government Business Enterprise in relation to
the business that became the transferred
business may be enforced by or against the
Crown but may not be enforced by or against
the prescribed Government Business
Enterprise or the relevant prescribed
Government Business Enterprise;
(f) a contract made by the prescribed Government
Business Enterprise or the relevant prescribed
Government Business Enterprise relating to
the business that became the transferred
business but not performed or discharged
before the transfer day is taken to have been
made by the Crown.
(6) A person who is a party to a contract made by a
prescribed Government Business Enterprise or a relevant
prescribed Government Business Enterprise is not entitled
to
(a) terminate that contract; or
(b) claim that there has been a breach or default
of the contract; or
(c) claim any remedy
by reason only of the transfer, under this section, of any
business to which that contract, or part of that contract,
relates or which arises from that contract or a part of that
contract.
(7) If any dispute arises
38
2003 Government Business Enterprises (Sale) No. s. 36
(a) as to whether any business of a prescribed
Government Business Enterprise or a relevant
prescribed Government Business Enterprise is
transferred business; or
(b) as to whether any, or any part of any, contract
relates to transferred business
the Treasurer may determine the matter and is to provide
the prescribed Government Business Enterprise or the
relevant prescribed Government Business Enterprise and
any relevant Head of Agency, within the meaning of the
State Service Act 2000, with written notice of that
determination.
(8) The determination of the Treasurer under
subsection (7) is final and binding on the prescribed
Government Business Enterprise or relevant prescribed
Government Business Enterprise and the Crown.
(9) A Part 4 transfer notice is not a statutory rule for
the purposes of the Rules Publication Act 1953.
Arrangements for employees on transfer of business
36. (1) If the business of a prescribed Government
Business Enterprise or a relevant prescribed Government
Business Enterprise is transferred to the Crown under
section 35, the Treasurer may, by order provided to that
Government Business Enterprise, terminate on any
conditions the Treasurer considers appropriate, the
employment of a person who, immediately before the
transfer day, was employed by that Government Business
Enterprise for the purpose of that business.
(2) If the business of a prescribed Government
Business Enterprise or a relevant prescribed Government
Business Enterprise is transferred to the Crown under
section 35, a person employed under the State Service Act
39
s. 36 No. Government Business Enterprises (Sale) 2003
2000 for the purposes of that business immediately before
that transfer remains in employment under and subject to
the State Service Act 2000.
(3) In terminating the employment of a person
under subsection (1), the Treasurer is to do so subject to,
and in accordance with, any relevant contract, award or
agreement.
(4) On receipt of an order under subsection (1), the
prescribed Government Business Enterprise or relevant
prescribed Government Business Enterprise is to give to
each person whose employment is terminated by the order
written notice of that termination.
(5) If an order under subsection (1) terminates the
employment of a person employed by a prescribed
Government Business Enterprise or a relevant prescribed
Government Business Enterprise
(a) that employment is terminated immediately
before the transfer day or on the day specified
in the order; and
(b) that person is not entitled to any
compensation or other payment in respect of
the termination of employment except as
provided by the Retirement Benefits Act 1993,
the Public Sector Superannuation Reform Act
1999, any other law, an award, an agreement
or any conditions determined by the Treasurer
under subsection (1).
(6) An order under subsection (1) is not a statutory
rule for the purposes of the Rules Publication Act 1953.
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2003 Government Business Enterprises (Sale) No. s. 37
Exemption from State tax
37. State tax is not payable in respect of a Part 4 transfer
notice or any other document prepared in relation to, or for
the purposes of, the transfer of the business of a prescribed
Government Business Enterprise or a relevant prescribed
Government Business Enterprise under section 35(1).
41
s. 38 No. Government Business Enterprises (Sale) 2003
PART 5 PROCEEDS OF SALE OF BUSINESS OR
SHARES
Proceeds of sale of business or shares
38. (1) The proceeds of each of the following sales are to
be paid into the Consolidated Fund:
(a) the sale under section 7(1) of the business of a
prescribed Government Business Enterprise;
(b) the sale or grant under section 7(2) of a right;
(c) the sale under section 31 of any shares in a
company held by the Treasurer;
(d) the sale of any property of the Crown or any
business conducted by the Crown if that
property or business is business that was
transferred to the Crown under section 35.
(2) Without further appropriation than this section,
the Treasurer at his or her discretion may pay from the
Consolidated Fund the amounts approved by the
Treasurer to meet
(a) the expenses reasonably incurred in
connection with the sale, including expenses
incurred in connection with the formation of a
company; and
(b) the liabilities that remain with a prescribed
Government Business Enterprise after other
business of that Government Business
Enterprise has been sold under section 7, or
transferred to a company or the Crown under
section 17 or 35; and
(c) the liabilities transferred to the Crown under
42
2003 Government Business Enterprises (Sale) No. s. 38
section 35; and
(d) the expenses reasonably incurred in
connection with the performance of the
reporting, financial and other requirements of
a prescribed Government Business Enterprise
under its Portfolio Act, the Government
Business Enterprises Act 1995 or any other Act
that must be completed before the Treasurer
can make under section 39(1) a
recommendation that its Portfolio Act be
repealed.
43
s. 39 No. Government Business Enterprises (Sale) 2003
PART 6 MISCELLANEOUS
Repeal of Portfolio Acts
39. (1) On the recommendation of the Treasurer, the
Governor may, by proclamation, repeal the Portfolio Act of
a prescribed Government Business Enterprise.
(2) Before making for the purposes of subsection (1)
a recommendation that a Portfolio Act in respect of a
prescribed Government Business Enterprise be repealed,
the Treasurer is to be satisfied that
(a) all the business of the prescribed Government
Business Enterprise has been sold under
section 7(1) or transferred under section 17 or
35; and
(b) all reporting, financial and other requirements
under the Portfolio Act, the Government
Business Enterprises Act 1995 or any other Act
have been completed, as so required, by the
prescribed Government Business Enterprise or
its Board.
(3) On the repeal of a Portfolio Act, the
appointments of each member of the Board of the
Government Business Enterprise and the chief executive
officer of the Government Business Enterprise are
terminated.
(4) A member of a Board of a Government Business
Enterprise whose appointment is terminated under
subsection (3) is not entitled to any compensation or other
payment in respect of that termination, except as
determined by the Treasurer.
(5) A chief executive officer of a Government
Business Enterprise whose appointment is terminated
44
2003 Government Business Enterprises (Sale) No. s. 40
under subsection (3) is not entitled to any compensation or
other payment in respect of that termination if,
consequent on the sale of the business of the Government
Business Enterprise under section 7(1) or the transfer of
the business of the Government Business Enterprise to a
company under section 17
(a) the chief executive officer is offered
employment by the purchaser or company to
which the business is sold or transferred on
terms no less favourable than his or her terms
of employment as chief executive officer; or
(b) the chief executive officer takes up
employment with the purchaser or company to
which the business is sold or transferred
regardless of whether the terms of that
employment are the same, more favourable or
less favourable than his or her terms of
employment as chief executive officer.
Regulations
40. (1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may provide for all matters related to,
arising from or otherwise necessary or convenient to be
provided for in connection with any one or more of the
following:
(a) the sale under section 7(1) of the business of a
prescribed Government Business Enterprise;
(b) the sale or grant under section 7(2) of a right;
(c) the formation under section 14(1) of a
company;
45
s. 40 No. Government Business Enterprises (Sale) 2003
(d) the transfer under section 17 or 35 of the
business of a relevant prescribed Government
Business Enterprise or other prescribed
Government Business Enterprise;
(e) the sale under section 31 of shares held by the
Treasurer in a company;
(f) the arrangements relating to persons
employed by, or under the State Service Act
2000 for the purposes of, a prescribed
Government Business Enterprise, a relevant
prescribed Government Business Enterprise or
a company who are affected by
(i) the sale under section 7(1) of the
business of a prescribed Government
Business Enterprise; or
(ii) the transfer under section 17 or 35 of the
business of a relevant prescribed
Government Business Enterprise or
other prescribed Government Business
Enterprise; or
(iii) the sale under section 31 of shares held
by the Treasurer in a company.
(3) The regulations may be made so as to apply
differently according to matters, limitations or restrictions,
whether as to time, circumstance or otherwise, specified in
the regulations.
(4) The regulations may
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for the
imposition of a fine not exceeding 50 penalty
units and, in the case of a continuing offence, a
46
2003 Government Business Enterprises (Sale) No. s. 40
further fine not exceeding 10 penalty units for
each day during which the offence continues.
(5) The regulations may authorise any matter to be
from time to time determined, applied or regulated by the
Treasurer or a Portfolio Minister, or by the Treasurer and
a Portfolio Minister acting jointly.
(6) The regulations may contain provisions of a
savings or transitional nature consequent on
(a) the sale under section 7(1) of the business of a
prescribed Government Business Enterprise;
or
(b) the sale or grant under section 7(2) of a right;
or
(c) the formation under section 14(1) of a
company; or
(d) the transfer under section 17 or 35 of the
business of a prescribed Government Business
Enterprise or relevant prescribed Government
Business Enterprise; or
(e) the sale under section 31 of shares held by the
Treasurer in a company; or
(f) the transfer or termination under section 10,
18 or 36 of the employment of a person; or
(g) the repeal of a Portfolio Act; or
(h) the amendment of this Act.
(7) Regulations of a kind referred to in subsection (6)
may take effect on the day on which the event referred to
in that subsection that gave rise to the regulation occurred
or on a later day.
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s. 41 No. Government Business Enterprises (Sale) 2003
Administration of Act
41. 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.
Freedom of Information Act 1991 amended
42. Section 5(1) of the Freedom of Information Act 1991 is
amended by omitting subparagraph (ii) from paragraph (a)
of the definition of "prescribed authority" and substituting:
(ii) formed under section 5 of the TT-Line
Arrangements Act 1993; or
(iii) formed under section 14 of the
Government Business Enterprises (Sale)
Act 2003;
48 Government Printer, Tasmania