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TASMANIA
__________
WATER AND SEWERAGE CORPORATIONS BILL
2008
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Purposes of Act
4. Interpretation
PART 2 CORPORATIONS
Division 1 Establishment and principal objectives of Corporations
5. Regional Corporations
6. Common Services Corporation
7. Principal objectives of Corporations
8. Status of Corporations
9. Application of Corporations Act
Division 2 Share capital and ownership of Corporations
10. Share capital
11. Ownership and restrictions on sale and issue of securities
Division 3 Corporate governance of Corporations
12. Constitutions of Corporations
13. Shareholders' letters of expectation
14. Corporate plan
[Bill 23]-I
15. Approval, &c., of instruments of incorporation
16. Board of Regional Corporations
17. Board of Common Services Corporation
18. Owners' Representatives for Regional Corporations
19. Selection Committee
20. Chairperson of Corporations
21. Common directors of Regional Corporations
22. Regional directors of Regional Corporations
23. Directors of the Common Services Corporation
24. Director's duties
25. Chief executive officer
Division 4 Operations of Corporations
26. Operation and management
27. Staff
28. Borrowings
29. Acquisition and disposal of assets, investments and liabilities
30. Sale or disposal of main undertakings
Division 5 Distributions and payments to councils
31. Distribution of dividends
32. Payment of guarantee fees
33. Payment of tax equivalents
34. Distributions to members and councils
Division 6 Other provisions
35. Accounts, records, financial statements and audits
36. Provision of information to Treasurer and Parliament
37. Guarantee or indemnity
38. Treasurer's Instructions
PART 3 TRANSFER OF WATER AND SEWERAGE ASSETS,
RIGHTS, LIABILITIES AND EMPLOYEES
39. Interpretation and application
40. Notice of transfer
2
41. Confirmation of transfer
42. Vesting of assets, rights and liabilities in transferee
43. Transfer of interests in land
44. No compensation payable
45. Consideration for vesting
46. Transfers of employees generally
47. General preservation of conditions of employment
48. Superannuation
49. No payment-out on transfer or dual benefits
PART 4 MISCELLANEOUS
50. Delegation by Treasurer
51. General power of exemption by Treasurer
52. Regulations
53. Administration of Act
SCHEDULE 1 PROVISIONS FOR INCLUSION IN CONSTITUTION
OF EACH CORPORATION
SCHEDULE 2 DIRECTOR'S DUTIES
3
4
WATER AND SEWERAGE CORPORATIONS BILL
2008
(Brought in by the Treasurer, the Honourable Michael
Anthony Aird)
A BILL FOR
An Act to provide for the establishment of 3 Regional
Corporations and a Common Services Corporation and for
related matters
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 Water and
Sewerage Corporations Act 2008.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
3. Purposes of Act
The purposes of this Act are to
[Bill 23] 5
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s. 4 Part 1 Preliminary
(a) provide for matters relating to the
establishment and governance of 3
Regional Corporations, each having as its
primary purpose the provision of water
and sewerage services to its region,
owned by the constituent councils of that
region; and
(b) establish a Common Services
Corporation owned by the 3 Regional
Corporations; and
(c) vest the water and sewerage assets, rights
and liabilities of councils and bulk water
authorities in the Regional Corporations
and the Common Services Corporation;
and
(d) make provision for the transfer of water
and sewerage employees of councils and
employees of bulk water authorities to
the Regional Corporations and the
Common Services Corporation.
4. Interpretation
In this Act, unless the contrary intention
appears
"additional director" means a person who is
appointed under section 23(5) to the
board of the Common Services
Corporation;
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Water and Sewerage Corporations Act 2008
Act No. of
Part 1 Preliminary s. 4
"Auditor-General" has the same meaning as
in the Financial Management and Audit
Act 1990;
"Australian Accounting Standards" means
Accounting Standards issued by the
Australian Accounting Standards Board
or its successors;
"Board" means the board of directors of a
Corporation;
"bulk water authority" means Hobart Water
(ABN 95 327 914 139), Esk Water
(ABN 41 913 557 456) and Cradle Coast
Water (ABN 44 792 170 681);
"Chairperson" means the person who is the
common chairperson of each
Corporation;
"common director" means a person who is
appointed under section 21 to hold
concurrent appointments to the Boards of
all Regional Corporations;
"Common Services Corporation" means the
Common Services Corporation
incorporated in accordance with
section 6(1);
"Commonwealth Tax Act" means the
Income Tax Assessment Act 1936 of the
Commonwealth and any other
enactments of the Commonwealth
relating to income tax;
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s. 4 Part 1 Preliminary
"constituent council" means, in relation to a
Regional Corporation, a council
responsible for a municipal area within
the region applicable to that Regional
Corporation;
"constitution" means the constitution of a
Corporation;
"consulting group" means
(a) in relation to a Regional
Corporation, the Owners'
Representatives for that Regional
Corporation; or
(b) in relation to the Common
Services Corporation, the
members of the Common
Services Corporation;
"Corporation" means a Regional
Corporation or the Common Services
Corporation;
"Corporations Act" see section 46AA of
the Acts Interpretation Act 1931;
"Corporations legislation" see section
46AA of the Acts Interpretation Act
1931;
"council" see section 46 of the Acts
Interpretation Act 1931;
"director" means a director of a Corporation;
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Part 1 Preliminary s. 4
"dispose" means, in relation to any property,
to sell, transfer, assign, create a security
interest over, declare oneself a trustee of,
or part with any benefit of, or otherwise
dispose of, that property, or any interest
in it, or any part of it;
"document" includes an instrument and part
of a document;
"elected government official" means a
person who is elected as a Member of
Parliament of Tasmania or as a councillor
within the meaning of the Local
Government Act 1993;
"GBE Treasurer's Instruction" means a
Treasurer's Instruction within the
meaning of the Government Business
Enterprises Act 1995;
"legal or other proceeding" includes
arbitration proceedings and mediation
proceedings;
"member", in relation to a Corporation,
means a member of that Corporation
within the meaning of the Corporations
Act;
"northern region" see section 43(2) of the
Acts Interpretation Act 1931;
"north-western region" see section 43(2)
of the Acts Interpretation Act 1931;
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s. 4 Part 1 Preliminary
"ordinary majority" means a majority
representing more than 50% of
(a) in relation to the members of a
Regional Corporation, all the
members of that Regional
Corporation; or
(b) in relation to the Owners'
Representatives for a Regional
Corporation, all the Owners'
Representatives for that Regional
Corporation; or
(c) in relation to the Owners'
Representatives for all Regional
Corporations, the aggregate of all
the Owners' Representatives for
all Regional Corporations;
"Owners' Representatives", in relation to a
Regional Corporation, means the
Owners' Representatives appointed by
the members of that Regional
Corporation under section 18;
"principal objectives" means
(a) in relation to a Regional
Corporation, the principal
objectives of a Regional
Corporation specified in
section 7(1); or
(b) in relation to the Common
Services Corporation, the
principal objectives of the
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Part 1 Preliminary s. 4
Common Services Corporation
specified in section 7(2);
"region" means the northern region, the
north-western region or the southern
region;
"Regional Corporation" means a corporation
incorporated in accordance with
section 5(1);
"regional director" means a person who is
appointed under section 22 to the Board
of only one Regional Corporation;
"regulations" means regulations made and in
force under this Act;
"Relevant Corporation" means a
Corporation or a subsidiary of a
Corporation, as applicable;
"Selection Committee" means the committee
established under section 19(1);
"shareholders' letter of expectation", in
relation to a Regional Corporation,
means a letter issued by the members of
the Regional Corporation to the Board of
the Regional Corporation outlining the
broad expectations of its members for the
Regional Corporation and its
subsidiaries;
"southern region" see section 43(2) of the
Acts Interpretation Act 1931;
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s. 4 Part 1 Preliminary
"special majority" means a majority
representing at least 75% of
(a) in relation to the members of a
Regional Corporation, all the
members of that Regional
Corporation; or
(b) in relation to the Owners'
Representatives for a Regional
Corporation, all the Owners'
Representatives for that Regional
Corporation; or
(c) in relation to the Owners'
Representatives for all Regional
Corporations, the aggregate of all
the Owners' Representatives for
all Regional Corporations; or
(d) in relation to the Selection
Committee, all of the members of
the Selection Committee, except
the Chairperson when excluded
by section 19(8);
"subsidiary" has the same meaning as in the
Corporations Act;
"transfer day" means a day specified by the
Treasurer under section 40 to be the day
on which a transfer order takes effect;
"transfer order" means an order contained in
a notice published in the Gazette under
section 40(1);
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Part 1 Preliminary s. 4
"transferred asset, right or liability" means
an asset that vests in, or a right or
liability that becomes a right or liability
of, an individual or body by the operation
of sections 40 and 42;
"transferred employee" means an employee
specified in a transfer order;
"Treasurer's Instruction" means an
instruction issued under, or deemed to be
issued under section 38;
"water and sewerage functions" means
(a) in the case of water, any function
associated with
(i) the collection or storage
of that water, including by
way of bulk supply; and
(ii) the treatment of that
water; and
(iii) the conveyance and
reticulation of that water;
and
(iv) the supply of that water;
and
(b) in the case of sewerage, any
function associated with
(i) the collection or storage
of sewage; and
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s. 4 Part 1 Preliminary
(ii) the conveyance and
reticulation of sewage;
and
(iii) the treatment of sewage;
and
(c) any other functions associated
with the functions referred to in
paragraph (a) or (b), which may
include those associated with
stormwater and the re-use of
sewage; and
(d) any other functions as may be
prescribed by the regulations.
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Part 2 Corporations s. 5
PART 2 CORPORATIONS
Division 1 Establishment and principal objectives of
Corporations
5. Regional Corporations
(1) The councils are to procure, and participate in,
the incorporation of 3 Regional Corporations
under the names of
(a) the "Tasmanian Water and Sewerage
Corporation (Northern Region) Pty
Limited", the members of which are to
be, at the time of incorporation, each of
the councils in the northern region; and
(b) the "Tasmanian Water and Sewerage
Corporation (North-Western Region) Pty
Limited", the members of which are to
be, at the time of incorporation, each of
the councils in the north-western region;
and
(c) the "Tasmanian Water and Sewerage
Corporation (Southern Region) Pty
Limited", the members of which are to
be, at the time of incorporation, each of
the councils in the southern region.
(2) The Regional Corporations are to be
incorporated as proprietary companies limited by
shares under the Corporations Act.
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s. 6 Part 2 Corporations
6. Common Services Corporation
(1) Immediately following the incorporation of the
Regional Corporations, the Regional
Corporations are to procure, and participate in,
the incorporation of the Common Services
Corporation under the name of the "Tasmanian
Water and Sewerage Corporation (Common
Services) Pty Limited", the members of which
are to be, at the time of incorporation, the
Regional Corporations.
(2) The Common Services Corporation is to be
incorporated as a proprietary company limited
by shares under the Corporations Act.
7. Principal objectives of Corporations
(1) The principal objectives of each Regional
Corporation are as follows:
(a) in its region, to promote the efficient
delivery of water supply and provision of
sewerage services;
(b) in its region, to encourage water
conservation, demand management of
water and the re-use of water on an
economic and commercial basis;
(c) to be a successful business and, to this
end
(i) to operate its activities in
accordance with good
commercial practice; and
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Part 2 Corporations s. 7
(ii) to maximise sustainable returns
to its members.
(2) The principal objectives of the Common
Services Corporation are as follows:
(a) to assist the Regional Corporations to
fulfil their principal objectives by
providing, or arranging for the provision
of, services to the Regional Corporations,
which may include one or more of the
following:
(i) payroll services;
(ii) human resources services;
(iii) information technology services;
(iv) billing services;
(v) financial and accounting services;
(vi) any other service which may be
of assistance to the Regional
Corporations;
(b) to be a successful business and, to this
end
(i) to operate its activities in
accordance with good
commercial practice; and
(ii) to maximise sustainable returns
to its members;
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Act No. of
s. 7 Part 2 Corporations
(c) to be available to provide services to
third parties, including councils, on a
commercial basis.
(3) Each of the principal objectives of a Corporation
is of equal importance.
(4) For the purpose of fulfilling the principal
objective referred to in subsection (1)(c), each
Regional Corporation must obtain from the
Common Services Corporation any services
which
(a) exhibit economies of scale; or
(b) support the management of business risk;
or
(c) deliver consistency in the provision of
water and sewerage services in all
regions where this would result in a
regulatory, planning or consumer benefit.
(5) The fee that the Common Services Corporation
may charge for the provision of services to a
Regional Corporation under subsection (4) must
be set having regard to the extent to which the
Regional Corporation can recover those costs
through prices for the provision of services
including the extent to which the Regulator,
within the meaning of the Water and Sewerage
Industry Act 2008, may permit the recovery of
those costs.
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Part 2 Corporations s. 8
8. Status of Corporations
(1) Unless this or any other Act expressly provides
otherwise, a Relevant Corporation
(a) is not and does not represent the
constituent councils or the Crown; and
(b) is not exempt from any rate, tax, duty or
other impost imposed by or under any
law of the State or the Commonwealth
merely because a constituent council or a
Regional Corporation has beneficial
ownership of shares in it.
(2) The Crown is not liable for any debt, liability or
obligation of a Relevant Corporation.
(3) A council is not liable for any debt, liability or
obligation of a Relevant Corporation unless
(a) that council gives a guarantee or
indemnity under section 37 in relation to
that debt, liability or obligation; or
(b) in the case of a Regional Corporation of
which that council is a member, the
constitution of that Regional Corporation
expressly provides otherwise.
9. Application of Corporations Act
(1) Each Relevant Corporation and each director,
secretary, other officer or employee of a
Relevant Corporation is declared to be an
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Act No. of
s. 9 Part 2 Corporations
excluded matter for the purposes of section 5F of
the Corporations Act in relation to
(a) the following provisions of the
Corporations Act:
(i) sections 180, 181, 182, 183, 184
and 186;
(ii) Part 2M.4;
(iii) Chapter 6;
(iv) Chapter 6A;
(v) Chapter 6B;
(vi) Chapter 6C;
(vii) Chapter 7;
(viii) Chapter 8; and
(b) any other provisions of the Corporations
legislation to the extent specified by the
regulations for the purposes of this
subsection.
(2) The appointment and removal of directors of a
Corporation (other than the disqualification of a
person from managing a Corporation) are
declared to be excluded matters for the purposes
of section 5F of the Corporations Act in relation
to Chapter 2D of that Act.
(3) To the extent that any provision of this Act or
the regulations is incapable of concurrent
operation with the Corporations legislation, that
20
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Act No. of
Part 2 Corporations s. 9
provision is declared to be a Corporations
legislation displacement provision for the
purposes of section 5G of the Corporations Act.
(4) The regulations may declare a Relevant
Corporation and any matter relating to that
Relevant Corporation, to be an applied
Corporations legislation matter for the purposes
of Part 3 of the Corporations (Ancillary
Provisions) Act 2001 in relation to
(a) the whole of the Corporations legislation;
or
(b) an Act, regulations or other instrument
forming part of the Corporations
legislation; or
(c) a provision or provisions of the
Corporations legislation or of an Act,
regulations or other instrument forming
part of the Corporations legislation.
(5) A provision of the Corporations legislation that
is the subject of any declaration in the
regulations has effect, subject to the following
modifications:
(a) the provision applies as if the Relevant
Corporation were a proprietary company
and a company limited by shares;
(b) the provision applies as if shares in the
Relevant Corporation held by the
members were shares held in the
Relevant Corporation as a proprietary
21
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Act No. of
s. 9 Part 2 Corporations
company and a company limited by
shares;
(c) such other modifications as may be
prescribed by the regulations.
(6) Without limiting subsections (4) and (5), any
regulations referred to in subsection (4)
(a) may specify modifications to the
definitions and other interpretative
provisions of the Corporations legislation
relevant to any provision of the
Commonwealth legislation that is the
subject of the declaration; and
(b) may provide for the Australian Securities
and Investments Commission (ASIC) to
exercise a function under any provision
of the Corporations legislation that is the
subject of the declaration, but only if
(i) ASIC is to exercise that function
pursuant to an agreement of the
kind referred to in section 11(8)
or (9A)(b) of the Australian
Securities and Investments
Commission Act 2001 of the
Commonwealth; and
(ii) ASIC is authorised to exercise
that function under section 11 of
the Australian Securities and
Investments Commission Act
2001 of the Commonwealth; and
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Act No. of
Part 2 Corporations s. 9
(c) may specify that a reference to ASIC in
any provision of the Corporations
legislation that is the subject of the
declaration is to be read as a reference to
another person; and
(d) may identify the provisions of the
Corporations legislation to which the
declaration relates by reference to that
legislation as in force at a particular time;
and
(e) may specify a court of this State (other
than the Supreme Court) to exercise any
function conferred on a court or the
Supreme Court by any provision of the
Corporations legislation to which the
declaration relates.
(7) Subsection (6) does not apply to any provision of
the Corporations legislation that applies to the
Relevant Corporation as a law of the
Commonwealth.
(8) Words and expressions used in this section and
also in Part 3 of the Corporations (Ancillary
Provisions) Act 2001 have the same meanings as
they have in that Part.
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s. 10 Part 2 Corporations
Division 2 Share capital and ownership of Corporations
10. Share capital
Each Corporation is to have share capital and
one or more classes of shares as provided in its
constitution.
11. Ownership and restrictions on sale and issue of
securities
(1) Only the constituent councils may hold one or
more shares or other securities in a Regional
Corporation.
(2) Only Regional Corporations may hold one or
more shares or other securities in the Common
Services Corporation.
(3) Each member of a Regional Corporation is to at
all times hold an equal number of shares and an
equal number of other securities in that Regional
Corporation as each other member of that
Regional Corporation.
(4) A member of a Corporation must not dispose of
the shares or other securities in that Corporation
held by that member.
(5) A Corporation must not, and must ensure that
each of its subsidiaries does not
(a) offer shares or other securities in the
Corporation or any of its subsidiaries for
subscription, or invite any person to
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Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 12
subscribe for any such shares or other
securities; or
(b) grant options over unissued shares or
other securities in the Corporation or any
of its subsidiaries; or
(c) allot or issue shares or other securities in
the Corporation or any of its
subsidiaries
other than to existing members pro rata to their
existing shareholdings.
(6) In this section
(a) a reference to securities includes a
reference to securities of a kind specified
in section 92(3) of the Corporations Act;
and
(b) a reference to shares includes a reference
to shares of a kind specified in section
254A(1) of the Corporations Act.
Division 3 Corporate governance of Corporations
12. Constitutions of Corporations
(1) Each Corporation is to have a constitution.
(2) The members of a Corporation are to ensure that
the constitution of that Corporation at all times
contains
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Act No. of
s. 12 Part 2 Corporations
(a) provisions setting out the rights attaching
to each class of shares, which rights may
differ between classes of shares only in
respect of the payment of dividends; and
(b) provisions to the effect of the provisions
set out in Schedule 1; and
(c) such other provisions as are prescribed
by the regulations.
(3) The constitution of each Corporation
(a) is not to be adopted, modified or repealed
unless and until
(i) the provisions of section 15 have
been complied with in respect of
the proposed adoption,
modification or repeal; and
(ii) a resolution approving the
adoption, modification or repeal
has been passed by members in
accordance with the requirements
of the Corporations Act; and
(b) is not to be inconsistent with this Act or
the regulations.
(4) Each of the items that are to be included in the
constitution of a Corporation under this section
is also to be included in the constitution of a
subsidiary of a Corporation.
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Part 2 Corporations s. 13
13. Shareholders' letters of expectation
(1) On incorporation of each Regional Corporation,
the members of that Corporation are to provide a
shareholders' letter of expectation to the Board
of the Regional Corporation in a form approved
in accordance with section 15.
(2) The shareholders' letter of expectation of a
Regional Corporation must identify
(a) the strategic priorities of that Regional
Corporation; and
(b) the high-level expectations of members
for the performance of the business of
that Regional Corporation.
(3) The matters specified in paragraphs (a) and (b)
of subsection (2) are to be used in the
development of the corporate plan of that
Regional Corporation.
(4) A shareholders' letter of expectation of a
Regional Corporation
(a) is not to be issued, modified or
withdrawn unless and until the
provisions of section 15 have been
complied with in respect of the proposed
issue, modification or withdrawal; and
(b) is not to be inconsistent with this Act, the
regulations or the constitution of the
Regional Corporation.
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s. 14 Part 2 Corporations
14. Corporate plan
(1) For each financial year, a Corporation must have
a corporate plan for the Corporation and its
subsidiaries.
(2) The corporate plan is to
(a) be adopted or amended in accordance
with the procedure set out in section 15;
and
(b) cover the period specified in the
Treasurer's Instructions; and
(c) be in a form and contain the information
specified in the Treasurer's Instructions.
15. Approval, &c., of instruments of incorporation
(1) In this section
"final proposal" means a proposal
(a) in respect of which the Treasurer
has notified the consulting group
of the relevant Corporation that
he or she has no concerns; or
(b) which the consulting group has
given to the Treasurer and which
meets the requirements of
subsection (4)(f);
"final proposal date" means the date on
which the consulting group receives a
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Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 15
notification under paragraph (b)(i) or
paragraph (d)(i) of subsection (4) or has
given the Treasurer a final proposal
under subsection (4)(f);
"proposal" means a proposal
(a) to adopt, modify or repeal the
constitution of a Corporation; or
(b) to issue, modify or withdraw a
shareholders' letter of expectation
of a Regional Corporation; or
(c) to adopt or amend a corporate
plan for a Corporation.
(2) Before the incorporation of each Corporation,
the Treasurer is to approve the constitution of
that Corporation.
(3) The Treasurer is to approve the first corporate
plan of a Corporation.
(4) The consulting group for a Corporation is to
consult the Treasurer in accordance with the
following procedure before any proposal is
implemented:
(a) the consulting group is to give the
Treasurer
(i) in relation to a proposal relating
to a constitution or shareholders'
letter of expectation, details of
the proposal together with a draft
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Act No. of
s. 15 Part 2 Corporations
of all documents to which the
proposal relates; or
(ii) in relation to a proposal to adopt
a corporate plan, details of the
proposal together with a draft of
all documents to which the
proposal relates no later than 60
days before the corporate plan is
intended to take effect;
(b) within 42 days of receiving the proposal
and draft documents referred to in
paragraph (a), the Treasurer is to notify
the consulting group in writing that
(i) he or she has no concerns in
relation to that proposal, in which
case that proposal becomes a
final proposal; or
(ii) he or she has concerns, set out in
the notification, in relation to that
proposal;
(c) if the consulting group receives a
notification under paragraph (b)(ii),
within 42 days of receiving that
notification the consulting group is to
give the Treasurer a revised proposal in
response to the concerns raised, together
with a draft of all documents to which
the revised proposal relates;
(d) within 42 days of receiving a revised
proposal and draft documents referred to
in paragraph (c), the Treasurer is to
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Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 15
notify the consulting group in writing
that
(i) he or she has no concerns in
relation to that revised proposal,
in which case the revised
proposal given to the Treasurer
under paragraph (c) becomes a
final proposal; or
(ii) he or she has concerns in relation
to the revised proposal;
(e) if the Treasurer has concerns in relation
to the revised proposal referred to in
paragraph (d)(ii), the Treasurer may
(i) treat the revised proposal as a
proposal for the purposes of
paragraph (a); or
(ii) within 21 days of receiving the
revised proposal, resolve the
matters the subject of his or her
concerns (which resolution may
include amending any draft
document or requiring members
or the Board of the relevant
Corporation, as the case may be,
to implement or refrain from
implementing any proposal) and
notify the consulting group in
writing of his or her resolution;
(f) if the consulting group receives a
notification under paragraph (e)(ii), as
soon as practicable after receiving that
31
Water and Sewerage Corporations Act 2008
Act No. of
s. 15 Part 2 Corporations
notification the consulting group is to
give the Treasurer a final proposal which
is consistent with the Treasurer's
resolution and, in all other respects,
consistent with the revised proposal in
respect of which that resolution is made,
including all documents to which the
final proposal relates and any necessary
amendments to those documents.
(5) The Treasurer is to cause a copy of each final
proposal to be laid before each House of
Parliament within 7 days after the final proposal
date.
(6) If the Treasurer is unable to comply with
subsection (5) because a House of Parliament is
not sitting on any of the 7 days following the
final proposal date, the Treasurer is to
(a) on or before the end of the 7th day,
provide a copy of the final proposal to
the clerk of that House; and
(b) within the first 7 sitting-days after that
day, cause a copy of the final proposal to
be laid before that House.
(7) After the procedure specified in subsection (4)
has been completed
(a) if a final proposal relates to a constitution
of a Corporation or a shareholders' letter
of expectation of a Corporation, the
members of that Corporation are to
implement that proposal within 30 days
after the final proposal date; or
32
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 15
(b) if a final proposal relates to a corporate
plan of a Corporation
(i) the Board is to implement that
final proposal; and
(ii) the corporate plan reflecting the
final proposal takes effect on the
first day of the financial year next
commencing after the final
proposal date or on any other day
specified by the Treasurer; and
(iii) unless the Corporation has
received written notice from the
Treasurer to the contrary, each
GBE Treasurer's Instruction
given in relation to a corporate
plan under the Government
Business Enterprises Act 1995
applies by virtue of this Act as if
a reference to a Government
Business Enterprise in that
Treasurer's Instruction were a
reference to a Corporation.
(8) The members of a Corporation or the Board of a
Corporation, as the case may be, are not to
implement a proposal unless it is a final proposal
resulting from the application of the procedure
set out in subsection (4).
33
Water and Sewerage Corporations Act 2008
Act No. of
s. 16 Part 2 Corporations
16. Board of Regional Corporations
(1) Each Regional Corporation is to be governed by
a Board.
(2) The Board of a Regional Corporation is to
comprise
(a) the chairperson appointed by the
Owners' Representatives for that
Regional Corporation under
section 20(5)(a); and
(b) 3 common directors appointed by the
Owners' Representatives for that
Regional Corporation under section 21;
and
(c) 2 regional directors appointed by the
Owners' Representatives for that
Regional Corporation under section 22.
(3) If at any time a vacancy occurs on the Board of a
Regional Corporation, the Owners'
Representatives for that Regional Corporation
must, as soon as is practicable, do all things
necessary to appoint a person to fill that vacancy
in accordance with the procedures set out in this
Act.
17. Board of Common Services Corporation
(1) The Common Services Corporation is to be
governed by a Board.
34
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 18
(2) The Board of the Common Services Corporation
is to comprise
(a) the chairperson appointed by the
Regional Corporations under
section 20(5)(b); and
(b) up to 5 other directors appointed under
section 23.
(3) If at any time a vacancy occurs on the Board of
the Common Services Corporation, the Regional
Corporations must, as soon as is practicable, do
all things necessary to appoint a person to fill
that vacancy in accordance with the procedures
set out in this Act.
18. Owners' Representatives for Regional Corporations
(1) The members of a Regional Corporation must
collectively appoint 3 persons as Owners'
Representatives for that Regional Corporation by
the issue of a written notice, signed by each
member, to the Treasurer.
(2) Subject to subsection (6), each Owners'
Representative for a Regional Corporation is to
hold that office for a term of 3 years from the
date of his or her appointment, or such shorter
period
(a) as set out in the constitution of the
Regional Corporation; or
(b) as determined by the members of the
Regional Corporation at the time of the
35
Water and Sewerage Corporations Act 2008
Act No. of
s. 18 Part 2 Corporations
appointment of that Owners'
Representative.
(3) Subsection (2) does not limit the number of
times a person may be appointed to the role of
Owners' Representative.
(4) If at any time a vacancy occurs in the role of an
Owners' Representative for a Regional
Corporation, the members of that Regional
Corporation must, as soon as is practicable, do
all things necessary to appoint a person to fill
that vacancy in accordance with the procedures
set out in this Act.
(5) The Owners' Representatives for a Regional
Corporation are to
(a) consult with other Owners'
Representatives and undertake such other
functions imposed on Owners'
Representatives for a Regional
Corporation under this Act; and
(b) act as the official liaison between the
Board of the Regional Corporation and
the members of that Regional
Corporation.
(6) The members of a Regional Corporation may, by
special majority, remove any person from the
role of Owners' Representative for that Regional
Corporation.
36
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 19
19. Selection Committee
(1) The Owners' Representatives for all Regional
Corporations are to establish a committee
consisting of
(a) the Chairperson; and
(b) a person, approved by an ordinary
majority of the Owners' Representatives
for all Regional Corporations, with
expertise in the water and sewerage
sector; and
(c) a person, approved by an ordinary
majority of the Owners' Representatives
for all Regional Corporations, with
expertise in corporate governance and the
nomination or appointment of members
of boards; and
(d) the Secretary of the responsible
Department in relation to the Public
Account Act 1986.
(2) Any person, including directors of a
Corporation, may nominate for consideration by
the Selection Committee any one or more
persons as candidates for appointment as the
Chairperson or other director of a Corporation.
(3) The Selection Committee, after making due
enquiry if it considers it necessary, is to submit
to the Owners' Representatives for a Regional
Corporation a list of one or more names of
persons suitable for appointment as
37
Water and Sewerage Corporations Act 2008
Act No. of
s. 19 Part 2 Corporations
(a) Chairperson; or
(b) the common directors of any Regional
Corporation; or
(c) the regional directors of that Regional
Corporation.
(4) The Selection Committee, after making due
enquiry if it considers it necessary, is to submit
to the members of the Common Services
Corporation a list of one or more names of
persons suitable for appointment as additional
directors of the Common Services Corporation.
(5) Each person included in the list of names of
persons referred to in subsection (3) or (4) is to
be a person who, in the opinion of the Selection
Committee, has
(a) the experience and skills necessary to
assist the relevant Corporation to achieve
its principal objectives; and
(b) in the case of a regional director,
connection or familiarity with the region
applicable to the relevant Regional
Corporation.
(6) Despite subsections (2), (3), (4) and (5), none of
the following persons may be appointed as a
director of a Corporation:
(a) any current Owners' Representative;
(b) any current member of the Selection
Committee other than the Chairperson;
38
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 19
(c) any person who has served as an elected
government official at any time within
the 3 years preceding the intended date of
appointment;
(d) any person who currently holds office as
an elected government official or who is
currently an employee of any council.
(7) The Selection Committee may regulate its own
proceedings as it considers appropriate,
including the calling of, and the conduct of
business at, its meetings.
(8) The current Chairperson must not be present at
or take part in any consultations, discussions or
decisions by the Selection Committee in relation
to the appointment of any person to the role of
Chairperson.
(9) The Selection Committee may permit its
members to participate in a particular meeting or
all meetings by telephone, video conference or
any other means of communication and a
member who participates in a meeting as
permitted under this subsection is taken to be
present at the meeting.
(10) If the number of members of the Selection
Committee that constitutes a special majority
signs a document containing a statement that
they are in favour of a resolution or proposal set
out in the document, a resolution or proposal in
those terms is taken to have been passed or
agreed to at a meeting of the Selection
Committee on the day on which the document is
39
Water and Sewerage Corporations Act 2008
Act No. of
s. 20 Part 2 Corporations
signed or, if the members of the Selection
Committee do not sign it on the same day, on the
day on which the last of the members of the
Selection Committee signs the document.
(11) For the purposes of subsection (10), 2 or more
separate documents containing a statement in
identical terms, each of which is signed by one
or more members of the Selection Committee, is
taken to constitute one document.
(12) The members of the Selection Committee are to
be paid such fees and allowances as the Owners'
Representatives for all Regional Corporations
collectively determine from time to time.
(13) Each Regional Corporation is required to
contribute an equal share of a fee or allowance
that becomes payable under subsection (12).
(14) The Owners' Representatives for all Regional
Corporations may, by special majority, remove
any person other than the persons referred to in
subsection (1)(a) and (d) from the role of a
member of the Selection Committee.
20. Chairperson of Corporations
(1) The Board of each Corporation is to be chaired
by a common chairperson.
(2) The chairperson of a Corporation is also a
director of each Corporation for the purposes of
the Corporations Act.
40
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 20
(3) Prior to the appointment of any person to fill a
vacancy in the role of Chairperson, the Owners'
Representatives for all Regional Corporations
are to consult with each other in respect of that
appointment.
(4) From those persons recommended by the
Selection Committee under section 19(3) as
suitable for appointment to fill a vacancy in the
role of Chairperson, an ordinary majority of the
Owners' Representatives for all Regional
Corporations is to identify a person to fill that
vacancy.
(5) As soon as practicable after the identification of
a person to fill the vacancy in the role of
Chairperson under subsection (4)
(a) the Owners' Representatives for each
Regional Corporation are to appoint that
person as the chairperson of that
Regional Corporation to fill that
vacancy; and
(b) the Regional Corporations are to appoint
that person as the chairperson of the
Common Services Corporation to fill that
vacancy.
(6) The Chairperson is to be appointed
(a) in the case of the inaugural Chairperson,
for an initial term not exceeding 3 years;
and
41
Water and Sewerage Corporations Act 2008
Act No. of
s. 20 Part 2 Corporations
(b) in the case of each subsequent
Chairperson, for a term set out in the
constitution of each of the Corporations.
(7) Each of
(a) in the case of a Regional Corporation, the
Owners' Representatives for that
Regional Corporation; and
(b) in the case of the Common Services
Corporation, the Regional Corporations
is to, on instruction approved by a special
majority of the Owners' Representatives for all
Regional Corporations, remove a person from
the role of Chairperson.
(8) None of the persons referred to in
subsection (7)(a) or (b) may remove a person
from the role of Chairperson unless they have
received an instruction approved by a special
majority of the Owners' Representatives for all
Regional Corporations.
(9) If a person ceases to be chairperson of any
Corporation for any reason with effect from a
given point in time, that person is taken to have
resigned from his or her roles as
(a) a director of that Corporation; and
(b) a director and chairperson of each other
Corporation
at that time.
42
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 21
(10) The common directors of the Regional
Corporations present at any meeting may elect a
person present to chair the meeting if
(a) there is a vacancy in the role of
Chairperson; or
(b) the Chairperson is not present at the time
appointed for the meeting.
21. Common directors of Regional Corporations
(1) Prior to the appointment of any person to fill a
vacancy in the role of common director, the
Owners' Representatives for all Regional
Corporations are to consult with each other in
respect of that appointment.
(2) From those persons recommended by the
Selection Committee under section 19(3) as
suitable for appointment to fill a vacancy in the
role of common director, an ordinary majority of
the Owners' Representatives for all Regional
Corporations is to identify a person to fill each
vacancy in the role of common director.
(3) As soon as practicable after the identification of
a person to fill a vacancy in the role of common
director under subsection (2), the Owners'
Representatives for a Regional Corporation are
to appoint that person as a common director of
that Regional Corporation to fill that vacancy.
(4) The Owners' Representatives for a Regional
Corporation are to remove, on instruction
43
Water and Sewerage Corporations Act 2008
Act No. of
s. 22 Part 2 Corporations
approved by a special majority of the Owners'
Representatives for all Regional Corporations, a
person from the role of common director of that
Regional Corporation.
(5) The Owners' Representatives for a Regional
Corporation may not remove a person from the
role of common director of that Regional
Corporation unless they have received an
instruction approved by a special majority of the
Owners' Representatives for all Regional
Corporations.
(6) If a person ceases to be a common director of a
Regional Corporation for any reason with effect
from a given point in time, that person is taken
to have resigned from his or her role as a
common director of each other Corporation at
that time.
22. Regional directors of Regional Corporations
(1) Prior to the appointment of any person to fill a
vacancy in the role of regional director of a
Regional Corporation, the Owners'
Representatives for that Regional Corporation
are to consult with each other in respect of that
appointment.
(2) From those persons recommended by the
Selection Committee under section 19(3) as
suitable for appointment to fill a vacancy in the
role of regional director, an ordinary majority of
the Owners' Representatives for that Regional
Corporation is to appoint a person as a regional
44
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 23
director of that Regional Corporation to fill that
vacancy.
(3) The Owners' Representatives for a Regional
Corporation may, by special majority, remove a
person from the role of regional director of that
Regional Corporation.
23. Directors of the Common Services Corporation
(1) When a person is appointed as chief executive
officer of a Regional Corporation in accordance
with section 25 with effect from a given point in
time, the Regional Corporations are to appoint
that person as a director of the Common Services
Corporation at that time.
(2) If a person ceases to be chief executive officer of
a Regional Corporation for any reason with
effect from a given point in time, that person is
taken to have resigned from his or her role as a
director of the Common Services Corporation at
that time.
(3) If a person who is the chief executive officer of a
Regional Corporation ceases to be a director of
the Common Services Corporation for any
reason with effect from a given point in time,
that person is taken to have resigned from his or
her role as chief executive officer of the
Regional Corporation at that time.
(4) The Treasurer may from time to time, by written
notice given to the members of the Common
Services Corporation, require
45
Water and Sewerage Corporations Act 2008
Act No. of
s. 24 Part 2 Corporations
(a) that the Common Services Corporation is
to have up to 2 additional directors; or
(b) that the Common Services Corporation is
to cease to have any additional directors.
(5) As soon as is practicable after receiving written
notice from the Treasurer referred to in
subsection (4)(a), the members of the Common
Services Corporation are to appoint by ordinary
majority, from those persons recommended by
the Selection Committee under section 19(4) as
suitable for appointment to fill a vacancy in the
role of additional director, a person as an
additional director of the Common Services
Corporation to fill that vacancy.
(6) As soon as is practicable after receiving written
notice from the Treasurer referred to in
subsection (4)(b), the members of the Common
Services Corporation are to remove all persons
from the role of additional director of the
Common Services Corporation.
(7) The members of the Common Services
Corporation may, by special majority, remove a
person from the role of additional director of that
Corporation.
24. Director's duties
(1) Schedule 2 has effect.
(2) The regulations may amend or replace
Schedule 2.
46
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 25
(3) Any regulations referred to in subsection (2)
(a) may confer jurisdiction on courts in
relation to the duties and liability of
officers, within the meaning of
Schedule 2, and associated matters; and
(b) may provide that a contravention of any
of the provisions of the regulations
constitutes an offence and, in respect of
such offences, provide for the imposition
of a fine not exceeding 2 000 penalty
units or imprisonment for a term not
exceeding 5 years, or both.
25. Chief executive officer
(1) The chief executive officer of a Corporation is to
be appointed by, and may be removed by, the
Board of that Corporation.
(2) A person must not be appointed as chief
executive officer of a Regional Corporation
unless that person has given, and not withdrawn,
his or her written consent to act concurrently as a
director of the Common Services Corporation.
Division 4 Operations of Corporations
26. Operation and management
(1) All decisions relating to the operation of a
Corporation are to be made by or under the
authority of the Board.
47
Water and Sewerage Corporations Act 2008
Act No. of
s. 27 Part 2 Corporations
(2) The Board of a Corporation may, by written
notice, delegate to any person any of its
functions or powers, other than this power of
delegation.
(3) The chief executive officer of a Corporation is,
subject to subsection (1), responsible for the day-
to-day management of the operation of the
Corporation in accordance with the general
policies and specific directions of the Board.
27. Staff
(1) A Corporation may employ such staff as it
requires to exercise its functions.
(2) A Corporation may fix the salary, wages and
conditions of its staff in so far as they are not
fixed by or under any Act or law.
28. Borrowings
Except where approved by the Treasurer, a
Corporation or its subsidiary must not borrow
from any person other than the Tasmanian
Public Finance Corporation.
29. Acquisition and disposal of assets, investments and
liabilities
(1) Neither a Corporation nor any of its subsidiaries
may, without the prior approval of the members
of that Corporation, acquire or dispose of any
48
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 30
assets or investments, including shares in a
company, other than in the ordinary course of
the business of the Corporation or the subsidiary,
as the case may be.
(2) Neither a Corporation nor any of its subsidiaries
may acquire or dispose of any assets or liabilities
in contravention of any requirements of the
regulations.
30. Sale or disposal of main undertakings
(1) A Corporation must not dispose of the main
undertakings of the Corporation, or permit the
disposal of the main undertakings of any of its
subsidiaries.
(2) The main undertakings of a Corporation are as
specified in the most recent corporate plan of the
Corporation.
Division 5 Distributions and payments to councils
31. Distribution of dividends
(1) The Board of a Relevant Corporation must
determine a dividend policy for that Relevant
Corporation.
(2) The dividend policy of a Relevant Corporation is
to
(a) establish the aggregate amount, and the
basis of determining the aggregate
49
Water and Sewerage Corporations Act 2008
Act No. of
s. 31 Part 2 Corporations
amount, of dividends payable to
members in respect of any period; and
(b) in the case of a Regional Corporation, be
determined having due regard to the
provisions of the shareholders' letter of
expectation of that Regional Corporation;
and
(c) be consistent with good commercial
practice; and
(d) require adequate provision to be made
for expected future capital requirements
and operational expenditure before the
payment of any dividend to members.
(3) In setting out the rights attaching to each class of
shares for the purposes of section 12(2)(a)
(a) the constitution of a Regional
Corporation is to provide for the
allocation of the aggregate amount of
dividends amongst members in the
amount and in the manner determined
under section 34; and
(b) the constitution of each other Relevant
Corporation (including the Common
Services Corporation) must have regard,
as far as reasonably practicable, to the
intent and operation of paragraph (a).
50
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 32
32. Payment of guarantee fees
(1) Each Relevant Corporation is liable to pay
guarantee fees determined pursuant to
subsection (2).
(2) If a Relevant Corporation borrows money in
accordance with section 28
(a) Division 1 of Part 11 of the Government
Business Enterprises Act 1995 (other
than section 78(1)) and, unless the
Relevant Corporation has received a
notice from the Treasurer to the contrary,
each GBE Treasurer's Instruction given
in relation to any matter the subject of
that Division, applies by virtue of this
Act in relation to that Relevant
Corporation as if
(i) the Relevant Corporation were a
Government Business Enterprise
specified in Schedule 3 to the
Government Business Enterprises
Act 1995; and
(ii) each reference to financial
accommodation in that Division
of the Government Business
Enterprises Act 1995 were a
reference to money borrowed
from the Tasmanian Public
Finance Corporation in
accordance with section 28; and
(iii) each reference to the
Consolidated Fund in the
51
Water and Sewerage Corporations Act 2008
Act No. of
s. 33 Part 2 Corporations
Government Business Enterprises
Act 1995 were a reference to a
council; and
(b) the Relevant Corporation is to pay the
aggregate guarantee fee determined by
the Treasurer pursuant to the application
of paragraph (a) to councils in the
amount and in the manner determined
under section 34.
33. Payment of tax equivalents
(1) Each Relevant Corporation is liable to pay an
aggregate income tax equivalent in respect of
each financial year determined pursuant to the
application of this section to councils in the
amount and in the manner determined under
section 34.
(2) Despite subsection (1), a Relevant Corporation is
not liable to pay an income tax equivalent to the
extent to which it is liable to pay income tax
under the Commonwealth Tax Act.
(3) Division 3 of Part 10 of the Government
Business Enterprises Act 1995 and, unless the
Relevant Corporation has received a notice from
the Treasurer to the contrary, each GBE
Treasurer's Instruction given in relation to any
matter the subject of that Division applies by
virtue of this Act to the liabilities and payments
that arise under subsection (1) as if
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Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 34
(a) the Relevant Corporation or subsidiary of
a Corporation were a prescribed
Government Business Enterprise as
defined in section 67 of the Government
Business Enterprises Act 1995; and
(b) a reference to section 68 of the
Government Business Enterprises Act
1995 were a reference to subsection (1);
and
(c) each reference to the Consolidated Fund
were a reference to a council.
34. Distributions to members and councils
(1) The aggregate of all dividends to be paid by a
Relevant Corporation (other than a Regional
Corporation) is to be allocated to members of
that Relevant Corporation in accordance with its
constitution.
(2) Other than as contemplated in subsection (1), the
aggregate of all distributions and payments to be
made by Relevant Corporations under this
Division are to be allocated
(a) in the case of dividends to be paid by a
Regional Corporation, to the constituent
councils of that Regional Corporation
who are members of that Regional
Corporation; and
(b) in the case of any other distribution or
payment by a Regional Corporation or a
53
Water and Sewerage Corporations Act 2008
Act No. of
s. 34 Part 2 Corporations
subsidiary of a Regional Corporation, to
the constituent councils of that Regional
Corporation who are members of that
Regional Corporation; and
(c) in the case of any distribution or payment
by the Common Services Corporation or
any of its subsidiaries, to the councils
who are members of any Regional
Corporation
in accordance with the following principles:
(d) for any such distributions and payments
to be made on or before the date 5 years
after the date of incorporation of the last
of the Regional Corporations
(i) a priority distribution and
payment determined by the
Treasurer is to be paid to the
councils referred to in
paragraph (a), (b) or (c) (as
applicable) that generated
positive returns from that
council's water and sewerage
activities on a sustainable basis
from the period 1 July 2003 to
30 June 2006; and
(ii) a residual distribution and
payment determined by the
Treasurer is to be paid to the
councils referred to in
paragraph (a), (b) or (c) (as
applicable) based on the relative
54
Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 34
net asset value of the assets,
rights and liabilities (as
determined by the Treasurer)
transferred by that council to the
Regional Corporation and the
Common Services Corporation
under this Act at or about the
time of formation of that
Regional Corporation or any
other time as determined by the
Treasurer; and
(e) for any such distributions and payments
to be made thereafter, a distribution and
payment is to be paid to the councils
referred to in paragraph (a), (b) or (c) (as
applicable) based on a mechanism for
allocation of those distributions and
payments agreed by all those councils or
otherwise determined in accordance with
subsection (3).
(3) If the councils referred to in subsection (2)(e) are
unable to agree on a mechanism for allocation of
the distributions and payments referred to in
subsection (2)(e) within 60 days after a request
to determine such a mechanism by a Relevant
Corporation, the Treasurer may, by notice to the
Relevant Corporation, determine such a
mechanism for that and any other distribution or
payment to be made by that Relevant
Corporation.
(4) The Treasurer may, in accordance with
section 38, issue a Treasurer's Instruction in
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Water and Sewerage Corporations Act 2008
Act No. of
s. 35 Part 2 Corporations
respect of any of the matters referred to in this
section.
Division 6 Other provisions
35. Accounts, records, financial statements and audits
(1) Each Corporation must maintain financial
records that accurately reflect and record the
transactions and financial position and
performance of the business of the Corporation
and its subsidiaries.
(2) Within 45 days after the end of a financial year,
the Board of a Corporation is to
(a) prepare the financial statements of the
Corporation relating to that financial
year; and
(b) if the Corporation has subsidiaries,
prepare consolidated financial statements
in respect of the Corporation and all its
subsidiaries relating to that financial
year; and
(c) provide the Auditor-General with the
Corporation's financial statements and
the consolidated financial statements.
(3) The financial statements must
(a) contain the documents, statements and
information required by, and otherwise
comply with, the Treasurer's
Instructions; and
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Water and Sewerage Corporations Act 2008
Act No. of
Part 2 Corporations s. 36
(b) subject to the Treasurer's Instructions,
comply with Australian Accounting
Standards; and
(c) be signed or certified as specified in the
Treasurer's Instructions.
(4) The Treasurer may direct the Board of a
Corporation to include in the financial
statements any financial information that he or
she considers appropriate.
(5) The provisions of Chapter 2M of the
Corporations Act apply to each Corporation as if
it were a large proprietary company (within the
meaning given to that term by that Act) for the
purposes of that Chapter.
(6) The Auditor-General is to be the auditor of a
Corporation for the purposes of the Corporations
Act.
(7) The Auditor-General must provide the Board of
a Corporation and the Treasurer with a copy of
his or her opinion in respect of the financial
statements of the Corporation given under
section 40 of the Financial Management and
Audit Act 1990.
36. Provision of information to Treasurer and
Parliament
(1) The Board of each Corporation is to provide to
the members of the Corporation and the
Treasurer a copy of the annual report of the
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Water and Sewerage Corporations Act 2008
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s. 37 Part 2 Corporations
Corporation, by no later than 3 months after the
end of the financial year to which the annual
report relates.
(2) The Treasurer is to cause to be laid before each
House of Parliament each copy provided to the
Treasurer under subsection (1) within 7 days
after receiving it.
(3) If the Treasurer is unable to comply with
subsection (1) because a House of Parliament is
not sitting on any of the 7 days following the
receipt of each copy provided under
subsection (1), the Treasurer must
(a) on or before the end of the 7th day,
provide copies of the annual report to the
clerk of that House; and
(b) within the first 7 sitting-days after that
day, cause copies of the annual report to
be laid before that House.
37. Guarantee or indemnity
(1) On the written request of a Relevant
Corporation, any constituent council, in writing,
may guarantee, give an indemnity in relation to,
or guarantee and give an indemnity in relation
to
(a) the repayment of any money lent or
agreed to be lent to the Relevant
Corporation; or
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(b) the performance of an obligation
undertaken by the Relevant Corporation
or which the Relevant Corporation 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 or arising from an obligation
undertaken or agreed to be undertaken;
and
(b) is subject to any conditions determined
by the relevant constituent council and
specified in the guarantee or indemnity.
(3) This section has effect regardless of whether the
loan or obligation was undertaken, agreed to be
undertaken or required to be repaid or performed
in Tasmania or elsewhere.
38. Treasurer's Instructions
(1) The Treasurer may issue instructions, in writing,
in respect of guidelines, principles, practices and
procedures to be observed by a Corporation.
(2) Unless the Corporation has received notice from
the Treasurer to the contrary, a GBE Treasurer's
Instruction is taken to be a Treasurer's
Instruction issued under subsection (1) and is to
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be read as if any reference to a Government
Business Enterprise in that instruction were a
reference to a Corporation.
(3) Subject to subsection (4), a Corporation is to
comply with each Treasurer's Instruction.
(4) The Treasurer may exempt a Corporation from
its obligation to comply with all or part of a
Treasurer's Instruction.
(5) A Treasurer's Instruction which is inconsistent
with this Act or any other enactment is invalid to
the extent of the inconsistency.
(6) A Treasurer's Instruction to be complied with by
a Corporation does not have any effect until a
copy of it is provided to that Corporation.
(7) A Treasurer's Instruction is not a statutory rule
within the meaning of the Rules Publication Act
1953.
(8) For the purposes of section 22 of the Acts
Interpretation Act 1931, a Treasurer's
Instruction is an instrument of a like nature to an
order.
(9) Subsections (1), (2), (3), (4), (5), (6), (7) and (8)
apply to a subsidiary of a Corporation in the
same manner and to the same extent as the
subsections apply to a Corporation.
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Employees
PART 3 TRANSFER OF WATER AND SEWERAGE
ASSETS, RIGHTS, LIABILITIES AND EMPLOYEES
39. Interpretation and application
In this Part
"asset" means, in relation to a transferor,
property of any kind whether tangible or
intangible, real or personal, present or
future, whether arising from, accruing
under, created or evidenced by or the
subject of, an instrument or otherwise
and whether liquidated or unliquidated,
actual, contingent or prospective, to the
extent that it relates, directly or
indirectly, to the water and sewerage
functions of that transferor and includes,
without limitation, any
(a) legal or equitable estate or
interest in real or personal
property; and
(b) chose in action; and
(c) money, documents or securities;
and
(d) infrastructure; and
(e) plant and equipment; and
(f) intellectual property; and
(g) goodwill; and
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(h) records; and
(i) any other right;
"employee" means, in relation to a transferor,
an employee of that transferor engaged,
directly or indirectly, in whole or in part,
in performing the water and sewerage
functions of that transferor;
"liability" means, in relation to a transferor,
any liability, duty or obligation whether
actual, contingent or prospective,
liquidated or unliquidated, and whether
owed alone or jointly or jointly and
severally with any other person, to the
extent that it relates, directly or
indirectly, to the water and sewerage
functions of that transferor;
"records" means, in relation to a transferor,
registers, papers, documents, minutes,
receipts, books of account and other
records, however compiled, recorded or
stored, to the extent that they relate,
directly or indirectly, to the water and
sewerage functions of that transferor;
"right" means, in relation to a transferor, any
right, power, privilege or immunity
whether actual, contingent or
prospective, to the extent that it relates,
directly or indirectly, to the water and
sewerage functions of that transferor;
"State tax" means any of the following if
imposed by any Act or law of Tasmania:
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(a) a fee, including an application fee
and registration fee;
(b) a tax, including a duty;
(c) a charge;
"transferee" means a council, a bulk water
authority or a Corporation, or a
subsidiary of any of them, to which any
employees, assets, rights or liabilities are
transferred;
"transferor" means a council, a bulk water
authority or a Corporation, or a
subsidiary of any of them, or the Crown
from which any employees, assets, rights
or liabilities are transferred, or any
person prescribed by the regulations.
40. Notice of transfer
(1) The Treasurer may, by notice published in the
Gazette, order the transfer to a specified
transferee of such of a specified transferor's
(a) assets, rights and liabilities; and
(b) employees
as are specified in the order.
(2) The assets, rights and liabilities and the
employees specified in the order referred to in
subsection (1) need not constitute all of the
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assets, rights or liabilities or all of the employees
of the transferor.
(3) A transfer order takes effect on the day specified
in the order.
(4) A transferor that is the subject of a transfer order
is to ensure that transfer of the specified assets,
rights, liabilities and employees occurs on or as
soon as practicable after the transfer day.
(5) The Treasurer may publish more than one notice
in respect of the transfer of assets, rights,
liabilities and employees of a transferor and may
specify different transfer days in respect of the
transfer of those assets, rights, liabilities and
employees.
(6) The Treasurer may amend or revoke any notice
published under this section.
(7) A notice under this section is not a statutory rule
for the purposes of the Rules Publication Act
1953.
(8) State tax is not payable in respect of any
document prepared to give effect to a transfer
order.
41. Confirmation of transfer
(1) If any dispute arises
(a) as to whether an asset, right, liability or
employee is transferred under a transfer
order; or
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(b) as to whether any, or any part of any,
contract or document relates to an asset,
right, liability or employee transferred
under a transfer order
the Treasurer may determine the matter and is to
provide the concerned parties with written notice
of that determination.
(2) The determination of the Treasurer under
subsection (1) is final and binding on the
transferor and transferee concerned.
42. Vesting of assets, rights and liabilities in transferee
(1) When any assets, rights or liabilities are
transferred, the following provisions have effect:
(a) the assets of the transferor that are the
subject of the transfer order vest in the
transferee by virtue of this section and
without the need for any further
conveyance, transfer, assignment or
assurance;
(b) the rights or liabilities of the transferor
that are the subject of the transfer order
become by virtue of this section the
rights or liabilities of the transferee;
(c) all legal or other proceedings relating to
the assets, rights or liabilities that are the
subject of the transfer order commenced
before the transfer by or against the
transferor or a predecessor of the
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transferor and pending immediately
before the transfer are taken to be
proceedings pending by or against the
transferee;
(d) any legal or other proceedings relating to
the assets, rights or liabilities that are the
subject of the transfer order which could
have been commenced immediately
before the transfer by or against the
transferor or a predecessor of the
transferor may be commenced by or
against the transferee;
(e) a judgment or order of a court or other
tribunal obtained before the transfer by
or against the transferor or a predecessor
of the transferor relating to the assets,
rights or liabilities that are the subject of
the transfer order may be enforced by or
against the transferee;
(f) any document relating to legal or other
proceedings relating to the assets, rights
or liabilities that are the subject of the
transfer order that has been served on or
by a transferor or a predecessor of the
transferor before the transfer is taken,
where appropriate, to have been served
on or by the transferee;
(g) any act, matter or thing done or omitted
to be done in relation to the assets, rights
or liabilities that are the subject of the
transfer order before the transfer by, to or
in respect of the transferor or a
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predecessor of the transferor is (to the
extent to which that act, matter or thing
has any force or effect) taken to have
been done or omitted by, to or in respect
of the transferee;
(h) a reference in any Act, in any instrument
made under any Act, in any contract,
agreement, arrangement or undertaking,
or in any document of any kind to
(i) the transferor; or
(ii) any predecessor of the
transferor
to the extent to which the reference
relates to the assets, rights or liabilities
that are the subject of the transfer order,
is taken to be, or include, a reference to
the transferee.
(2) The operation of this section is not to be
regarded
(a) as a breach of contract or confidence or
otherwise as a civil wrong; or
(b) as a breach of any contractual provision
prohibiting, restricting or regulating the
assignment or transfer of assets, rights or
liabilities; or
(c) as giving rise to any remedy by a party to
an instrument, or as causing or
permitting the termination of any
instrument, because of a change in the
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beneficial or legal ownership of any
asset, right or liability that is the subject
of the transfer order; or
(d) as an event of default under any contract
or other instrument.
(3) No assignment to the transferee by a lessee from
the transferor is required.
(4) A transfer is subject to the terms and conditions
of the transfer order by which it is effected.
43. Transfer of interests in land
(1) A transfer order may transfer an interest in
respect of land vested in the transferor without
transferring the whole of the interests of the
transferor in that land.
(2) If the interest transferred is not a separate
interest, the order operates to create the interest
transferred in such terms as are specified in the
order.
(3) This clause does not limit any other provision of
this Act.
44. No compensation payable
No compensation is payable to any person or
body in connection with a transfer except to the
extent (if any) to which the transfer order giving
rise to the transfer so provides.
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45. Consideration for vesting
(1) The Treasurer may, by notice published in the
Gazette, specify the consideration on which a
transfer is made and the value or values at which
the assets, rights or liabilities are transferred.
(2) A notice under subsection (1) is not a statutory
rule for the purposes of the Rules Publication
Act 1953.
46. Transfers of employees generally
(1) As soon as practicable after receiving notice of
the transfer day specified in a transfer order, the
relevant transferor is to give to each of its
employees specified in the transfer order written
notice that his or her employment is to be
transferred on that day, by the operation of this
Part, to the transferee specified in the transfer
order.
(2) Transferred employees are regarded for all
purposes as having become employees of the
transferee, in accordance with the terms of the
transfer order, on the transfer day specified in
the order.
(3) Before, or as soon as practicable after, the
employment of a person is transferred to a
transferee by the operation of this Part, the
transferee, by written notice provided to the
person, may determine the position description,
title, role or duties for the position to be
occupied by the person in the transferee that is
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different from his or her position description,
title, role or duties in the transferor.
(4) A chief executive officer of a transferor whose
employment is transferred to a transferee by
operation of this Part is not transferred to the
position of chief executive officer of the
transferee unless the Board of that transferee has
appointed him or her to that position.
47. General preservation of conditions of employment
(1) A transferred employee
(a) is, for a period of not less than 12 months
from the transfer day, to be paid by way
of remuneration (excluding any bonus
payments) by the transferee an amount
per annum no less than the amount he or
she received per annum (excluding any
bonus payments) immediately before the
day on which this Act receives the Royal
Assent or such other date agreed by the
transferee; and
(b) is, subject to any determination made
under section 46(3), to be employed by
the transferee for a period of not less than
12 months from the transfer day
(i) in accordance with any awards,
agreements and determinations
which would have applied to him
or her had he or she not been
transferred but instead remained
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as an employee of the transferor;
and
(ii) on terms and conditions in
aggregate that are no less
favourable to that transferred
employee than those which
would have applied to him or her
immediately prior to the day on
which this Act receives the Royal
Assent or such other date agreed
by the transferee
except where this or any other Act or law
makes specific provision in respect of
superannuation; and
(c) retains any rights to annual leave, long-
service leave, sick leave, and other forms
of leave, accrued or accruing during his
or her employment with the transferor,
and may claim any such entitlements as
against the transferee.
(2) Nothing in this section prevents any of the terms
of employment of a transferred employee being
altered by an award, industrial agreement or law
after he or she becomes a transferred employee.
48. Superannuation
(1) A Corporation may make contributions to one or
more superannuation schemes that comply with
the law of the Commonwealth relating to
superannuation.
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(2) A Corporation may participate in a
superannuation scheme provided for under the
Retirement Benefits Act 1993 or the Public
Sector Superannuation Reform Act 1999 in
respect of employees transferred under a transfer
order who were members of those schemes
immediately before being transferred.
(3) If a Corporation participates in either of the
schemes specified in subsection (2), the
Corporation is taken to be a prescribed authority
for the purposes of the Retirement Benefits Act
1993 or the Public Sector Superannuation
Reform Act 1999 in respect of any of its
employees who are subject to the scheme.
(4) If a Corporation participates in a superannuation
scheme provided for under the Retirement
Benefits Act 1993 or the Public Sector
Superannuation Reform Act 1999, it must
comply with any instruction relating to
superannuation given to it by the Minister
administering those Acts.
(5) A Corporation is to make adequate provision to
meet any liability it may have under the
Retirement Benefits Act 1993 to pay pension and
other benefits in respect of all transferred
employees.
(6) Except where approved by the Treasurer, a
Corporation or its subsidiary must not establish a
superannuation scheme.
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49. No payment-out on transfer or dual benefits
(1) Transferred employees are not entitled to receive
any payment or other benefit merely because
they cease to be employees of the transferor.
(2) Transferred employees are not entitled to claim,
both under this Act and under any other Act,
dual benefits of the same kind for the same
period of service.
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s. 50 Part 4 Miscellaneous
PART 4 MISCELLANEOUS
50. Delegation by Treasurer
The Treasurer may, by written notice, delegate
to any person any of his or her functions or
powers under this Act, other than this power of
delegation.
51. General power of exemption by Treasurer
The Treasurer may, by written notice, exempt
any individual or body from the application of
any provision of this Act or the regulations from
time to time and on such conditions as are
specified in the notice.
52. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting subsection (1), the regulations
may provide that any act or thing, or kind of act
or thing, of or relating to a Relevant Corporation
is authorised for the purposes of Part IV of the
Trade Practices Act 1974 of the Commonwealth.
(3) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
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(4) The regulations may authorise any matter to be
from time to time determined, applied, approved
or regulated by the Treasurer.
(5) The regulations may contain provisions of a
savings or transitional nature consequent on the
enactment of the relevant provision or provisions
of this Act.
(6) Regulations made under subsection (5) may take
effect on the day on which the relevant provision
or provisions of this Act commences or
commence or a later day.
53. 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.
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SCHEDULE 1 PROVISIONS FOR INCLUSION IN
CONSTITUTION OF EACH CORPORATION
Section 12(2)
Provisions to the effect of the following
provisions are to be included in the constitution
of each Corporation. Words and expressions
used in these provisions have the same meaning
as in this Act or, if applicable, the Corporations
Act.
1. Entrenchment
The constitution may not be modified
(a) in a way that would result in the
constitution being inconsistent with the
provisions of the Water and Sewerage
Corporations Act 2008; and
(b) unless the provisions of section 15 of the
Water and Sewerage Corporations Act
2008 have been complied with in respect
of the proposed modification.
2. Act to prevail
(1) The provisions of the Water and Sewerage
Corporations Act 2008 prevail over any
inconsistent provisions of the constitution of the
company.
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(2) The company, its directors and members are
expressly prohibited from exercising any of their
powers in contravention of or in a manner
inconsistent with any requirement of the Water
and Sewerage Corporations Act 2008.
3. Subsidiaries
(1) The company may not
(a) form, or participate in the formation of,
any company, trust, managed investment
scheme, other body corporate,
partnership or joint venture; or
(b) acquire
(i) any shares or other securities in a
company; or
(ii) any interest, including any units,
in any trust; or
(iii) any interest in any managed
investment scheme; or
(iv) any interest in any other body
corporate; or
(v) any interest in any partnership or
joint venture
without the prior approval of the members of the
first-mentioned company.
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(2) The company is, to the maximum extent
practicable, to ensure that every subsidiary
complies with its constitution (if any) and with
the requirements of the Water and Sewerage
Corporations Act 2008.
4. Replaceable rules not to apply
The replaceable rules applicable to a proprietary
company contained in the Corporations Act from
time to time do not apply to the company.
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SCHEDULE 2 DIRECTOR'S DUTIES
Section 24
1. Interpretation
In this Schedule
"business judgment" means any decision to
take or not take action in respect of a
matter relevant to the business operations
of a Relevant Corporation;
"involved" in respect of a contravention
means, exclusively, where the person
(a) has aided, abetted, counselled or
procured the contravention; or
(b) has induced, whether by threats
or promises or otherwise, the
contravention; or
(c) has been in any way, by act or
omission, directly or indirectly,
knowingly concerned in, or party
to, the contravention; or
(d) has conspired with others to
effect the contravention;
"officer" of a Relevant Corporation means
(a) a director or secretary of a
Relevant Corporation; or
(b) a person
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(i) who makes, or
participates in making,
decisions that affect the
whole, or a substantial
part, of the business of the
Relevant Corporation; or
(ii) who has the capacity to
affect significantly the
Relevant Corporation's
financial standing; or
(iii) in accordance with whose
instructions or wishes the
directors of the Relevant
Corporation are
accustomed to act
(excluding advice given
by the person in the
proper performance of
functions attaching to the
person's professional
capacity or their business
relationship with the
directors or the Relevant
Corporation); or
(c) a receiver, or receiver and
manager, of the property of the
Relevant Corporation; or
(d) an administrator of the Relevant
Corporation; or
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(e) an administrator of a deed of
company arrangement executed
by the Relevant Corporation; or
(f) a liquidator of the Relevant
Corporation; or
(g) a trustee or other person
administering a compromise or
arrangement made between the
Relevant Corporation and another
person.
2. Care and diligence civil obligation only
(1) A director or other officer of a Relevant
Corporation must exercise his or her powers and
discharge his or her duties with the degree of
care and diligence that a reasonable person
would exercise if he or she
(a) were a director or officer of a corporation
in that Relevant Corporation's
circumstances; and
(b) occupied the office held by, and had the
same responsibilities within that
Relevant Corporation as, the director or
officer
having regard to the provisions of this Act.
Penalty: Fine not exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 5 years.
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(2) A director or other officer of a Relevant
Corporation who makes a business judgment is
taken to meet the requirements of subclause (1),
and his or her equivalent duties at common law
and in equity, in respect of the judgment if the
director or other officer
(a) makes the judgment in good faith for a
proper purpose; and
(b) does not have a material personal interest
in the subject matter of the judgment;
and
(c) informs himself or herself about the
subject matter of the judgment to the
extent he or she reasonably believes to be
appropriate; and
(d) rationally believes that the judgment is in
the best interests of a Relevant
Corporation.
(3) The director's or officer's belief that the
judgment is in the best interests of a Relevant
Corporation is a rational one unless the belief is
one that no reasonable person in his or her
position would hold.
3. Good faith civil obligations
(1) A director or other officer of a Relevant
Corporation must exercise his or her powers and
discharge his or her duties
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(a) in good faith in the best interests of a
Relevant Corporation; and
(b) for a proper purpose.
Penalty: Fine not exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 5 years.
(2) A person who is involved in a contravention of
subclause (1) contravenes this subclause.
Penalty: Fine not exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 5 years.
4. Use of position civil obligations
(1) A director, secretary, other officer or employee
of a Relevant Corporation must not improperly
use his or her position to
(a) gain, directly or indirectly, an advantage
for himself or herself or someone else; or
(b) cause detriment to the Relevant
Corporation.
Penalty: Fine not exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 5 years.
(2) A person who is involved in a contravention of
subclause (1) contravenes this subclause.
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Penalty: Fine not exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 5 years.
5. Use of information civil obligations
(1) A person who obtains information because he or
she is, or has been, a director or other officer or
employee of a Relevant Corporation must not
improperly use the information to
(a) gain, directly or indirectly, an advantage
for himself or herself or someone else; or
(b) cause detriment to the Relevant
Corporation.
Penalty: Fine not exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 5 years.
(2) A person who is involved in a contravention of
subclause (1) contravenes this subclause.
Penalty: Fine not exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 5 years.
6. Good faith, use of position and use of information
criminal offences
(1) A director or other officer of a Relevant
Corporation commits an offence if he or she
(a) is reckless; or
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(b) is intentionally dishonest
and fails to exercise his or her powers and
discharge his or her duties
(c) in good faith in the best interests of the
Relevant Corporation; or
(d) for a proper purpose.
(2) A director, other officer or employee of a
Relevant Corporation commits an offence if he
or she uses his or her position dishonestly
(a) with the intention of directly or indirectly
gaining an advantage for himself or
herself, or another person, or causing
detriment to the Relevant Corporation; or
(b) recklessly as to whether the use may
result in he or she or another person
directly or indirectly gaining an
advantage, or in causing detriment to the
Relevant Corporation.
(3) A person who obtains information because he or
she is, or has been, a director or other officer or
employee of a Relevant Corporation commits an
offence if he or she uses the information
dishonestly
(a) with the intention of directly or indirectly
gaining an advantage for himself or
herself, or another person, or causing
detriment to the Relevant Corporation; or
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(b) recklessly as to whether the use may
result in he or she or another person
directly or indirectly gaining an
advantage, or in causing detriment to the
Relevant Corporation.
7. Directors and other Corporations
(1) A director of a Relevant Corporation is taken to
act in good faith in the best interests of a
Relevant Corporation if
(a) the director acts in good faith in the best
interests of any Relevant Corporation;
and
(b) that other Relevant Corporation is not
insolvent at the time the director acts and
does not become insolvent because of the
director's act.
(2) A director, secretary, other officer or employee
of a Relevant Corporation is taken to have met
the requirements in clauses 2, 3, 4, 5 and 6, and
his or her equivalent duties at common law and
in equity, even if
(a) that person is a director, secretary, other
officer or employee of another Relevant
Corporation; or
(b) that person exercises powers or
discharges duties as a director, secretary,
other officer or employee of that
Relevant Corporation in good faith in the
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best interest of another Relevant
Corporation and for a proper purpose in
connection with that other Relevant
Corporation; or
(c) that person uses his or her position to
gain, directly or indirectly, an advantage
for another Relevant Corporation; or
(d) that person uses information obtained
because that person is, or has been, a
director or other officer or employee of a
Relevant Corporation to gain, directly or
indirectly, an advantage for another
Relevant Corporation; or
(e) a conflict of interest exists because that
person is a director, secretary, other
officer or employee of another Relevant
Corporation.
8. Interaction of clauses 2, 3, 4, 5 and 6 with other laws
(1) Clauses 2, 3, 4, 5 and 6 have effect in addition
to, and not in derogation of, any rule of law
relating to the duty or liability of a person
because of that person's office or employment in
relation to a Relevant Corporation.
(2) Subclause (1) does not apply to
(a) subclauses (2) and (3) of clause 2 to the
extent to which those subclauses operate
on the duties at common law and in
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equity that are equivalent to the
requirements of clause 2(1); and
(b) clause 7 to the extent to which it operates
on the duties at common law and in
equity that are equivalent to the
requirements of clauses 2, 3, 4, 5 and 6.
88 Government Printer, Tasmania