Tasmanian Bills Tasmanian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
TOTE TASMANIA (SALE) BILL 2009
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Business defined
PART 2 AUTHORITY OF TREASURER TO SELL TOTE
TASMANIA
5. Authority of Treasurer to sell TOTE Tasmania
6. Treasurer may do convenient things
7. Treasurer may give directions to TOTE Tasmania or TOTE
subsidiary
8. Treasurer may amend constitution of TOTE Tasmania or TOTE
subsidiary, &c.
9. Exemption from State tax
PART 3 SALE OF SHARES IN TOTE TASMANIA OR TOTE
SUBSIDIARY
10. Application of Part
11. Long service leave if shares sold
12. Superannuation if shares sold
[Bill 17]-III
PART 4 SALE OF BUSINESS OF TOTE TASMANIA OR TOTE
SUBSIDIARY
Division 1 Preliminary
13. Application of Part
Division 2 Sale of business of TOTE Tasmania or TOTE subsidiary
14. Transitional provisions if business sold
15. Arrangements for employees if business sold
16. Long service leave if business sold
17. Superannuation if business sold
Division 3 Transfer of remaining business of TOTE Tasmania or TOTE
subsidiary to Crown
18. Transfer of remaining business to Crown
19. Arrangements for employees if business transferred
Division 4 Deregistration of TOTE Tasmania or TOTE subsidiary
20. Deregistration of TOTE Tasmania
PART 5 MISCELLANEOUS
21. Power to disclose information
22. No Crown guarantee
23. Proceeds of sale of shares or business
24. Auditor-General to review sale
25. Protection for acts done under this Act
26. Excluded matters under Corporations Act
27. Non-application of certain Acts
28. Offence by TOTE Tasmania or TOTE subsidiary
29. Regulations
30. Administration of Act
31. Savings and transitional provisions
32. Repeals
33. Consequential Amendments
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
2
TOTE TASMANIA (SALE) BILL 2009
(Brought in by the Treasurer, the Honourable Michael
Anthony Aird)
A BILL FOR
An Act to provide for the sale of shares in, or the business
of, TOTE Tasmania and its subsidiaries, to consequentially
amend the TOTE Tasmania Act 2000, to repeal and revoke
certain legislation 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
1. Short title
This Act may be cited as the TOTE Tasmania
(Sale) Act 2009.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Interpretation
In this Act, unless the contrary intention
appears
THIS BILL IS COGNATE WITH THE GAMING CONTROL AMENDMENT BILL 2009
[Bill 17] 3
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 3 Part 1 Preliminary
"asset" includes any real and personal
property, operation, right and licence;
"business", in relation to TOTE Tasmania or
a TOTE subsidiary, has the meaning
given by section 4;
"contract" includes an agreement and an
arrangement;
"legal proceeding" includes arbitration and
mediation;
"liability" means an actual, contingent or
prospective liability, duty or obligation;
"property" means
(a) any legal or equitable estate or
interest (whether present or future
and whether vested or contingent)
in real or personal property; and
(b) money, documents and securities;
and
(c) shares in a TOTE subsidiary; and
(d) any other rights;
"right" means a right, power, privilege or
immunity, whether present or future and
whether vested or contingent;
"sale day" means
(a) in relation to the sale of shares in
TOTE Tasmania or in a TOTE
4
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 1 Preliminary s. 4
subsidiary under section 5(1)(a)
or (c), the day on which those
shares are acquired by the
purchaser; or
(b) in relation to the sale of the
business of TOTE Tasmania or of
a TOTE subsidiary under
section 5(1)(b) or (d), the day on
which the business vests in the
purchaser;
"statutory rule" means a statutory rule within
the meaning of the Rules Publication Act
1953;
"TOTE subsidiary" means a subsidiary,
within the meaning of the Corporations
Act, of TOTE Tasmania;
"TOTE Tasmania" means the company
formed under section 6 of the TOTE
Tasmania Act 2000.
4. Business defined
(1) In relation to TOTE Tasmania or a TOTE
subsidiary
"business" includes
(a) the business conducted by TOTE
Tasmania or the TOTE
subsidiary; and
(b) the goodwill of that business; and
5
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 4 Part 1 Preliminary
(c) the assets of TOTE Tasmania or
the TOTE subsidiary; and
(d) the liabilities, duties and
obligations of TOTE Tasmania or
the TOTE subsidiary, whether
present or future and whether
vested or contingent; and
(e) a part of the business of TOTE
Tasmania or the TOTE
subsidiary.
(2) However
(a) this Act does not apply in relation to a
part of the business of TOTE Tasmania
or of a TOTE subsidiary that the
Treasurer, under subsection (3), has
excluded from the operation of this Act;
and
(b) a provision of this Act does not apply in
relation to a part of the business of TOTE
Tasmania or of a TOTE subsidiary that
the Treasurer, under subsection (3), has
excluded from the operation of that
provision.
(3) The Treasurer, by order, may exclude a part of
the business of TOTE Tasmania, or the whole or
a part of the business of a TOTE subsidiary,
from the operation of this Act or a provision of
this Act.
(4) An order under subsection (3) is a statutory rule.
6
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 2 Authority of Treasurer to Sell TOTE Tasmania s. 5
PART 2 AUTHORITY OF TREASURER TO SELL
TOTE TASMANIA
5. Authority of Treasurer to sell TOTE Tasmania
(1) While all the shares in TOTE Tasmania are held
by the Treasurer and another Minister in trust for
the Crown, the Treasurer may sell and transfer,
in accordance with this Act, one or more of the
following:
(a) those shares in TOTE Tasmania;
(b) the business of TOTE Tasmania;
(c) the shares in a TOTE subsidiary;
(d) the business of a TOTE subsidiary.
(2) A sale under this section will be on the
conditions the Treasurer considers appropriate.
(3) In exercising a power of sale under this section,
the Treasurer is to have regard to the
achievement of a fair and reasonable price.
6. Treasurer may do convenient things
For the purposes of a sale under section 5, the
Treasurer may
(a) enter into contracts; and
7
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 7 Part 2 Authority of Treasurer to Sell TOTE Tasmania
(b) transfer shares in TOTE Tasmania or in a
TOTE subsidiary in accordance with this
Act; and
(c) transfer the business of TOTE Tasmania
or of a TOTE subsidiary; and
(d) do any other thing the Treasurer
considers necessary or convenient in
connection with the sale.
7. Treasurer may give directions to TOTE Tasmania
or TOTE subsidiary
(1) The Treasurer may direct TOTE Tasmania or a
TOTE subsidiary to do one or more of the
following to facilitate a sale under section 5:
(a) take the action specified in the notice;
(b) take all reasonable steps and actions.
(2) A direction is to be in writing provided to TOTE
Tasmania or the TOTE subsidiary.
(3) TOTE Tasmania and a TOTE subsidiary are to
comply with a direction.
(4) The board of directors and chief executive
officer of TOTE Tasmania, and the board of
directors and chief executive officer of a TOTE
subsidiary, may do all things necessary or
convenient to be done to enable compliance with
a direction.
8
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 2 Authority of Treasurer to Sell TOTE Tasmania s. 8
8. Treasurer may amend constitution of TOTE
Tasmania or TOTE subsidiary, &c.
(1) In this section
"amend" means do any one or more of the
following:
(a) omit matter;
(b) insert matter;
(c) omit matter and substitute other
matter.
(2) Despite anything to the contrary in the
constitution of TOTE Tasmania or a TOTE
subsidiary, the Treasurer may amend, or revoke
and substitute, that constitution for the purposes
of facilitating a sale under section 5.
9. Exemption from State tax
(1) In this section
"State tax" means any tax, duty, charge or
application, registration or other fee
imposed by an Act or other law of
Tasmania.
(2) The Treasurer may determine that State tax is
not payable in respect of any document prepared
in relation to, or for the purposes of, a sale under
section 5.
9
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 9 Part 2 Authority of Treasurer to Sell TOTE Tasmania
(3) A determination is to be made by certificate
provided to the person who would otherwise be
required to pay the State tax.
(4) State tax is not payable in respect of an order
under section 18(2) or any other document
prepared in relation to, or for the purposes of, the
transfer of the business of TOTE Tasmania or of
a TOTE subsidiary under section 18.
10
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 3 Sale of Shares in TOTE Tasmania or TOTE Subsidiary s. 10
PART 3 SALE OF SHARES IN TOTE TASMANIA OR
TOTE SUBSIDIARY
10. Application of Part
This Part applies in relation to
(a) a sale under section 5(1)(a) of shares in
TOTE Tasmania; and
(b) a sale under section 5(1)(c) of shares in a
TOTE subsidiary.
11. Long service leave if shares sold
(1) This section applies to an employee of TOTE
Tasmania or of a TOTE subsidiary to whom,
immediately before the sale day, the Long
Service Leave (State Employees) Act 1994
applies.
(2) On the sale day, the Long Service Leave (State
Employees) Act 1994 ceases to apply to TOTE
Tasmania and its employees or the TOTE
subsidiary and its employees.
(3) In calculating, on or after the sale day, the period
of service an employee has completed with
TOTE Tasmania, or a TOTE subsidiary, 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, immediately before the sale day, a
period of service with TOTE Tasmania, or the
11
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 11 Part 3 Sale of Shares in TOTE Tasmania or TOTE Subsidiary
TOTE subsidiary, calculated in accordance with
the following formula:
where:
"Calculated service" is the period of service
the employee is taken to have completed
with TOTE Tasmania, or the TOTE
subsidiary, immediately before the sale
day;
"S" is the total period of service the employee
has completed with TOTE Tasmania, or
with the TOTE subsidiary and TOTE
Tasmania, (including service the
employee is taken to have completed
with TOTE Tasmania) immediately
before the sale day;
"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 the shares in TOTE
Tasmania, or the TOTE subsidiary, had
always been owned by the person who
purchased them in the sale under
section 5.
12
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 3 Sale of Shares in TOTE Tasmania or TOTE Subsidiary s. 12
12. Superannuation if shares sold
If the Treasurer agrees to sell the shares in
TOTE Tasmania or a TOTE subsidiary, the
Minister administering the Retirement Benefits
Act 1993 is to make a declaration under
regulation 3(3) of the Retirement Benefits
Regulations 2005 declaring the agreement for
that sale to be a prescribed arrangement for the
purposes of those regulations.
13
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 13 Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
PART 4 SALE OF BUSINESS OF TOTE TASMANIA
OR TOTE SUBSIDIARY
Division 1 Preliminary
13. Application of Part
This Part applies in relation to
(a) a sale under section 5(1)(b) of the
business of TOTE Tasmania; and
(b) a sale under section 5(1)(d) of the
business of a TOTE subsidiary.
Division 2 Sale of business of TOTE Tasmania or TOTE
subsidiary
14. Transitional provisions if business sold
(1) In this section
"transferring business" means the business
of TOTE Tasmania, or of a TOTE
subsidiary, that the Treasurer agrees to
sell.
(2) If the business of TOTE Tasmania or of a TOTE
subsidiary is sold, on and after the sale day the
following provisions apply except as otherwise
agreed, in writing, by the Treasurer and the
purchaser:
(a) a reference in an existing document to
TOTE Tasmania, or the TOTE
14
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary s. 14
subsidiary, in relation to the transferring
business is taken, where appropriate, to
be or to include a reference to the
purchaser;
(b) a legal proceeding that could have been
instituted by or against TOTE Tasmania,
or the TOTE subsidiary, immediately
before the sale day and that relates to the
transferring business may be instituted
by or against the purchaser;
(c) a legal proceeding instituted by or
against TOTE Tasmania, or the TOTE
subsidiary, that relates to the transferring
business and is pending immediately
before the sale day may be continued by
or against the purchaser;
(d) a document served on TOTE Tasmania,
or the TOTE subsidiary, in respect of a
legal proceeding 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 TOTE Tasmania, or the
TOTE subsidiary, in relation to the
transferring business may be enforced by
or against the purchaser but may not be
enforced by or against TOTE Tasmania,
or the TOTE subsidiary;
(f) a contract made by TOTE Tasmania, or
the TOTE subsidiary, relating to the
transferring business but not performed
15
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 15 Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
or discharged before the sale day is taken
to have been made by the purchaser.
(3) If the business of TOTE Tasmania or of a TOTE
subsidiary is sold, the obligations of TOTE
Tasmania or the TOTE subsidiary in relation to a
liability that becomes the liability of the
purchaser as part of that sale are discharged on
the sale day.
15. Arrangements for employees if business sold
(1) In this section
"transferred employee" means a person
whose employment with TOTE
Tasmania, or a TOTE subsidiary, is
transferred by reason of an order made
under subsection (2)(a) and the operation
of subsection (6).
(2) If the Treasurer sells the business of TOTE
Tasmania or of a TOTE subsidiary, the Treasurer
may, by order provided to TOTE Tasmania or
the TOTE subsidiary
(a) transfer to the purchaser the employment
of a person who, immediately before the
sale day, was employed by TOTE
Tasmania or the TOTE subsidiary 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
16
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary s. 15
sale day, was employed by TOTE
Tasmania or the TOTE subsidiary for the
purposes of that business.
(3) Before transferring or terminating the
employment of a person under subsection (2),
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 (2), 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 (2),
TOTE Tasmania or the TOTE subsidiary 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 day, or on the day specified in the
order under subsection (2) 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 to be an employee of
TOTE Tasmania or the TOTE subsidiary.
(7) A transferred employee
17
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 15 Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
(a) is taken to have been employed by the
purchaser for the same remuneration as
he or she was receiving immediately
before the transfer; and
(b) except where an award, agreement or law
otherwise provides, retains all accrued
entitlements as if employment as an
employee of the purchaser were a
continuation of employment with TOTE
Tasmania or the TOTE subsidiary; 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 law provides otherwise.
(9) The period of service with TOTE Tasmania, or
with the TOTE subsidiary and TOTE Tasmania,
(including service the transferred employee is
taken to have completed with TOTE Tasmania)
of a person who becomes a transferred employee
is taken to be service with the purchaser.
18
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary s. 16
(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 (2) terminates the
employment of a person employed by TOTE
Tasmania or a TOTE subsidiary
(a) that employment is terminated
immediately before the sale 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 the
conditions determined by the Treasurer
under subsection (2).
(12) An order under subsection (2) is not a statutory
rule.
16. Long service leave if business sold
(1) In this section
"transferred employee" means a person
whose employment with TOTE
Tasmania, or a TOTE subsidiary, is
transferred by reason of an order made
19
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 16 Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
under section 15(2)(a) and the operation
of section 15(6).
(2) The Long Service Leave (State Employees) Act
1994 does not apply to a transferred employee,
or to TOTE Tasmania or the TOTE subsidiary
on and after the sale day.
(3) 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:
"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
TOTE Tasmania, or the TOTE subsidiary
and TOTE Tasmania, (including service
the transferred employee is taken to have
completed with TOTE Tasmania)
immediately before the sale day;
20
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary s. 17
"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.
17. Superannuation if business sold
If the Treasurer makes an order under
section 15(2)(a) on the sale of the business of
TOTE Tasmania or a TOTE subsidiary
transferring to the purchaser the employment of
a person, the Minister administering the
Retirement Benefits Act 1993 is to make a
declaration under regulation 3(3) of the
Retirement Benefits Regulations 2005 declaring
the agreement for that sale to be a prescribed
arrangement for the purposes of those
regulations.
Division 3 Transfer of remaining business of TOTE
Tasmania or TOTE subsidiary to Crown
18. Transfer of remaining business to Crown
(1) In this section
"transfer day" means the day specified in an
order under subsection (2) as the day on
which the transfer of the business of
TOTE Tasmania, or of a TOTE
21
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 18 Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
subsidiary, to which the notice relates
takes effect;
"transferring business" means the business
of TOTE Tasmania or of a TOTE
subsidiary that is the subject of an order
under subsection (2).
(2) If the Treasurer sells only a part of the business
of TOTE Tasmania or of a TOTE subsidiary
under section 5 and a further part of that
business remains unsold, the Treasurer, by order
published in the Gazette, may
(a) transfer to the Crown the whole or any
part of the remaining business of TOTE
Tasmania or of the TOTE subsidiary; and
(b) specify the day on which that transfer
takes effect; and
(c) specify conditions relating to that
transfer; and
(d) provide for any matter that is incidental
to that transfer.
(3) An order under subsection (2) may be made in
anticipation of the sale of the business of TOTE
Tasmania or of a TOTE subsidiary.
(4) On the transfer day
(a) any business, other than a liability, of
TOTE Tasmania or of the TOTE
subsidiary that is specified in, and
22
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary s. 18
transferred by, the order vests in the
Crown; and
(b) any business of TOTE Tasmania or of
the TOTE subsidiary that is a liability
and is specified in, and transferred by,
the order becomes the liability of the
Crown.
(5) Except as otherwise provided in an order under
subsection (2), on and after the transfer day the
following provisions apply:
(a) a reference in an existing document to
TOTE Tasmania or the TOTE subsidiary,
or the board of directors of TOTE
Tasmania or the TOTE subsidiary, in
relation to the transferring business is
taken, where appropriate, to be or to
include a reference to the Crown;
(b) a legal proceeding that could have been
instituted by or against TOTE Tasmania
or the TOTE subsidiary immediately
before the transfer day and that relates to
the transferring business may be
instituted by or against the Crown;
(c) a legal proceeding instituted by or
against TOTE Tasmania or the TOTE
subsidiary that relates to the transferring
business and is pending immediately
before the transfer day may be continued
by or against the Crown;
(d) a document served on TOTE Tasmania
or the TOTE subsidiary in respect of a
23
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 18 Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
legal proceeding referred to in
paragraph (c) is taken to have been
served on the Crown;
(e) a judgment or order of a court obtained
by or against TOTE Tasmania or the
TOTE subsidiary in relation to the
transferring business may be enforced by
or against the Crown but may not be
enforced by or against TOTE Tasmania
or the TOTE subsidiary;
(f) a contract made by TOTE Tasmania or
the TOTE subsidiary relating to the
transferring business but not performed
or discharged before the transfer day is
taken to have been made by the Crown.
(6) If any dispute arises
(a) as to whether any business of TOTE
Tasmania or of a TOTE subsidiary is
transferring business; or
(b) as to whether any, or any part of any,
contract relates to transferring business
the Treasurer may determine the matter and is to
provide TOTE Tasmania or the TOTE subsidiary
with written notice of that determination.
(7) The determination of the Treasurer under
subsection (6) is final and binding on TOTE
Tasmania or the TOTE subsidiary and on the
Crown.
24
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary s. 19
(8) An order under subsection (2) is not a statutory
rule.
19. Arrangements for employees if business transferred
(1) In this section
"transfer day" means the day specified in an
order under section 18(2) as the day on
which the transfer of the business of
TOTE Tasmania, or of a TOTE
subsidiary, to which the notice relates
takes effect.
(2) If the business of TOTE Tasmania or of a TOTE
subsidiary is transferred to the Crown under
section 18, the Treasurer, by order provided to
TOTE Tasmania or the TOTE subsidiary, may
terminate on any conditions the Treasurer
considers appropriate the employment of a
person who, immediately before the transfer day,
was employed by TOTE Tasmania or the TOTE
subsidiary for the purpose of that business.
(3) In terminating the employment of a person under
subsection (2), 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 (2),
TOTE Tasmania or the TOTE subsidiary is to
give to each person whose employment is
terminated by the order written notice of that
termination.
25
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 20 Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
(5) If an order under subsection (2) terminates the
employment of a person employed by TOTE
Tasmania or a TOTE subsidiary
(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 (2).
(6) An order under subsection (2) is not a statutory
rule.
Division 4 Deregistration of TOTE Tasmania or TOTE
subsidiary
20. Deregistration of TOTE Tasmania
(1) In this section
"business of TOTE Tasmania" includes the
shares in, and the business of, each
TOTE subsidiary.
(2) After the business of TOTE Tasmania has been
sold, the Treasurer may apply, or require TOTE
Tasmania to apply, for the deregistration of
26
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary s. 20
TOTE Tasmania under section 601AA of the
Corporations Act.
(3) After the business of a TOTE subsidiary has
been sold, the Treasurer may require TOTE
Tasmania or the TOTE subsidiary to apply for
the deregistration of the TOTE subsidiary under
section 601AA of the Corporations Act.
(4) A requirement under subsection (2) or (3) is to
be in writing.
(5) TOTE Tasmania or a TOTE subsidiary is to
comply with a requirement under subsection (2)
or (3).
27
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 21 Part 5 Miscellaneous
PART 5 MISCELLANEOUS
21. Power to disclose information
(1) In this section
"potential purchaser" means a person
determined by the Treasurer to be a
potential purchaser of
(a) the shares in TOTE Tasmania or
in a TOTE subsidiary; or
(b) the business of TOTE Tasmania
or of a TOTE subsidiary.
(2) Each of the following persons may disclose
information to one or more of the other
following persons, or to one or more of the
persons referred to in subsection (3)(a), (b), (c)
or (e), as the person considers necessary or
convenient for the purposes of facilitating a sale
under section 5 of shares in, or the business of,
TOTE Tasmania or a TOTE subsidiary:
(a) TOTE Tasmania;
(b) a director or employee of TOTE
Tasmania;
(c) a TOTE subsidiary;
(d) a director or employee of a TOTE
subsidiary;
(e) the Treasurer;
28
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 5 Miscellaneous s. 22
(f) a person providing professional advice to
the Treasurer on any matter relating to
such a sale;
(g) the Auditor-General;
(h) a person, or a person of a class,
authorised by the Treasurer, in writing, to
disclose information.
(3) A person to whom information is disclosed
under this section must not disclose that
information to a person who is not
(a) the potential purchaser; or
(b) a director, agent or employee of the
potential purchaser; or
(c) a person providing professional advice to
the potential purchaser on any matter
relating to the potential purchase; or
(d) a person referred to in subsection (2); or
(e) a person, or a person of a class,
authorised by the Treasurer, in writing, to
receive that information.
Penalty: Fine not exceeding 200 penalty units.
22. No Crown guarantee
The obligations of TOTE Tasmania, and of all
TOTE subsidiaries, are not guaranteed by the
Crown.
29
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 23 Part 5 Miscellaneous
23. Proceeds of sale of shares or business
The proceeds of a sale under section 5 are to be
paid into the Consolidated Fund.
24. Auditor-General to review sale
(1) The Auditor-General is to review all sales under
section 5 as he or she considers appropriate and
lay a report of his or her findings before each
House of Parliament within 120 days after
(a) the sale day if the shares in TOTE
Tasmania are sold under section 5(1)(a);
or
(b) the day fixed by proclamation made
under section 32(2)(b) if TOTE
Tasmania has been deregistered pursuant
to section 20.
(2) For the purposes of enabling the Auditor-
General to conduct the review and make the
report in accordance with subsection (1), the
Treasurer is to ensure that the Auditor-General
(a) is notified of the sale day, or the day
fixed by proclamation made under
section 32(2)(b), either before or on that
day or as soon as is reasonably
practicable after that day; and
(b) is given access to all information the
Auditor-General considers relevant.
30
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 5 Miscellaneous s. 25
25. Protection for acts done under this Act
Any thing done or omitted in good faith that is
done or omitted under, or authorised by, this Act
does not, except as otherwise expressly provided
by or under this Act or as provided or agreed by
the person doing or omitting the thing
(a) terminate a contract, other instrument or
obligation; or
(b) give rise to a right to terminate a
contract, other instrument or obligation
by fulfilling a condition or in any other
manner; or
(c) release a surety or other obligee wholly
or in part from an obligation; or
(d) give rise to any right or remedy by a
party to a contract or other instrument; or
(e) constitute a breach of a contract or other
instrument; or
(f) constitute a civil or criminal wrong; or
(g) constitute a breach of confidence.
26. Excluded matters under Corporations Act
For the purposes of section 5F of the
Corporations Act, the following matters are
declared to be excluded matters in relation to the
whole of that Act:
31
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 27 Part 5 Miscellaneous
(a) any matter included in this Act;
(b) any thing done or omitted to be done for
the purposes of a matter included in this
Act.
27. Non-application of certain Acts
(1) Entering into and giving effect to a contract, or a
contract of a class, approved under
subsection (2) is authorised by this Act for the
purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Policy
Reform (Tasmania) Act 1996.
(2) The Treasurer, by order published in the Gazette,
may approve for the purposes of this section a
contract, or a class of contracts, that relates to a
sale under section 5.
(3) An order under subsection (2) is not a statutory
rule.
28. Offence by TOTE Tasmania or TOTE subsidiary
(1) If TOTE Tasmania or a TOTE subsidiary
commits an offence against this Act, each
director and other person concerned in the
management of TOTE Tasmania or the TOTE
subsidiary is taken to have also committed the
offence and may be convicted of the offence
unless the person establishes that
32
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 5 Miscellaneous s. 29
(a) the act or omission constituting the
offence took place without the director or
other person's knowledge or consent; or
(b) the director or other person used all due
diligence to prevent that act or omission
by TOTE Tasmania or the TOTE
subsidiary.
(2) A director or other person referred to in
subsection (1) may be convicted of an offence
against this Act whether or not TOTE Tasmania
or the TOTE subsidiary is charged with or
convicted of the offence.
29. Regulations
(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
relating to, or necessary or convenient to be
provided for in connection with, any one or more
of the following matters:
(a) a sale under section 5;
(b) a transfer of the business of TOTE
Tasmania or of a TOTE subsidiary to the
Crown under section 18;
(c) the arrangements relating to persons
employed by TOTE Tasmania or by a
TOTE subsidiary who are affected by a
sale under section 5 or a transfer of the
33
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 29 Part 5 Miscellaneous
business of TOTE Tasmania or of the
TOTE subsidiary to the Crown under
section 18;
(d) the deregistration under the Corporations
Act of TOTE Tasmania or a TOTE
subsidiary.
(3) Despite section 26, the regulations may declare
for the purposes of section 5F of the
Corporations Act that any matter included in this
Act, or any act done or omitted for the purposes
of a matter included in this Act, is not declared
to be an excluded matter in relation to
(a) the whole, or any provision, of that Act;
or
(b) that Act other than to an extent specified
in the regulations.
(4) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(5) 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 further fine not
exceeding 10 penalty units for each day
during which the offence continues.
34
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 5 Miscellaneous s. 30
(6) The regulations may authorise any matter to be
from time to time approved, determined, applied
or regulated by the Treasurer.
(7) The regulations may contain provisions of a
savings or transitional nature consequent on
(a) the enactment of this Act; or
(b) a sale under section 5; or
(c) a transfer of the business of TOTE
Tasmania or of a TOTE subsidiary to the
Crown under section 18.
(8) Regulations made under subsection (7) may take
effect on the day on which this Act commences
or a later day as specified in the regulations,
whether the day so specified is before, on or
after the day on which the regulations are made.
30. Administration of Act
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.
35
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 31 Part 5 Miscellaneous
31. Savings and transitional provisions
(1) Despite the completion of a sale under
section 5(1)(a) of the shares in TOTE Tasmania,
the Auditor-General is to continue to act as
auditor of TOTE Tasmania in respect of a
financial year completed before that sale.
(2) After a sale under section 5(1)(a) of the shares in
TOTE Tasmania, TOTE Tasmania must
(a) allow the Auditor-General to access
documents and information, and to do all
other things, necessary for the purposes
of complying with subsection (1); and
(b) provide, in respect of a financial year
completed before that sale, copies of any
financial statement, directors' report and
auditor's report and the annual return as
required by the Corporations Act to the
Treasurer unless that financial statement,
directors' report, auditor's report or
annual return has previously been
provided under section 13 of the TOTE
Tasmania Act 2000 as in force on the day
on which this Act commences.
Penalty: Fine not exceeding 200 penalty units.
(3) The Treasurer is to cause a copy of any financial
statement, directors' report, auditor's report or
annual return provided under subsection (1) to
be laid before each House of Parliament within 7
sitting-days after receiving it.
36
TOTE Tasmania (Sale) Act 2009
Act No. of
Part 5 Miscellaneous s. 32
32. Repeals
(1) In this section
"prescribed legislation" means the following
Acts and proclamations:
(a) TOTE Tasmania Act 2000;
(b) TOTE Tasmania (Transitional
and Consequential Provisions)
Act 2000;
(c) Proclamation under the TOTE
Tasmania Act 2000 (S.R. 2001,
No. 9);
(d) Proclamation under the TOTE
Tasmania (Transitional and
Consequential Provisions) Act
2000 (S.R. 2001, No. 10).
(2) The prescribed legislation is repealed and
revoked
(a) if the shares in TOTE Tasmania are sold
under section 5(1)(a), on the sale day; or
(b) if TOTE Tasmania has been deregistered
pursuant to section 20, on the day fixed
by proclamation made under
subsection (3).
(3) On the recommendation of the Treasurer, the
Governor, by proclamation, may repeal and
revoke the prescribed legislation.
37
TOTE Tasmania (Sale) Act 2009
Act No. of
s. 33 Part 5 Miscellaneous
(4) Before making a recommendation for the
purpose of subsection (3), the Treasurer is to be
satisfied that TOTE Tasmania has been
deregistered pursuant to section 20.
33. Consequential Amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
38
TOTE Tasmania (Sale) Act 2009
Act No. of
sch. 1
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 33
TOTE Tasmania Act 2000
1. Section 23 is repealed.
Government Printer, Tasmania 39