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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Electricity Corporations Bill 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
Part 2 -- Electricity Corporations
Division 1 -- Establishment of corporations
4. Corporations established 5
5. Corporations not agents of Crown 5
6. Corporations and officers not part of Public Service 5
7. Head office of Regional Power Corporation 6
Division 2 -- Boards of directors
8. Boards of directors 6
9. Role of boards 7
10. Provisions about the constitution and proceedings of
boards 7
11. Remuneration 7
12. Conflict of duties 7
13. Committees 8
Division 3 -- Staff
Subdivision 1 -- Chief executive officer
14. Appointment 8
15. Role of chief executive officer 9
16. Resignation 9
17. Acting appointments 9
page i
246--1
Electricity Corporations Bill 2003
Contents
Subdivision 2 -- Other staff
18. Powers in relation to staff 9
19. Certain industrial matters excluded from employment
agreements 10
20. Designation of executive officers 11
Subdivision 3 -- Minimum standards for staff
management
21. Standards to be set out in instrument 11
22. Reports to Commissioner for Public Sector Standards 12
Subdivision 4 -- Joint policy on staff transfers
23. Corporations to have joint policy approved by
Minister 12
24. Amendment of policy statement 13
25. Consultation with staff 14
Subdivision 5 -- General
26. Superannuation 14
Division 4 -- Duties of, and relating to, directors
and staff
27. Duties of, and relating to, directors 15
28. Chief executive officer, duties imposed 15
29. Executive officers, duties imposed 15
30. Members of staff, duties imposed 16
31. Codes of conduct 16
32. Reports to Commissioner for Public Sector Standards 16
33. Reports to Minister 17
Part 3 -- Functions and powers of
corporations
Division 1 -- Functions, powers and related
provisions
Subdivision 1 -- Preliminary
34. Terms used in this Division 18
Subdivision 2 -- Electricity Generation
Corporation
35. Principal functions 19
36. Other functions 19
37. Restriction on area in which may operate 20
38. Directions relating to new generation 21
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Electricity Corporations Bill 2003
Contents
39. Directions relating to the supply of gas 21
40. Provisions relating to instruments under section 38
or 39 21
41. Restriction on sale of electricity to consumers 22
42. Review of restriction 22
43. Extension of designated period 23
Subdivision 3 -- Electricity Networks Corporation
44. Principal functions 23
45. Other functions 24
46. Restriction on area in which may operate 25
Subdivision 4 -- Electricity Retail Corporation
47. Principal functions 25
48. Other functions 26
49. Restriction on area in which may operate 26
50. Directions relating to the supply of gas 26
51. Prohibition on generation of electricity for a
designated period 27
52. Review of prohibition 28
53. Extension of designated period 28
Subdivision 5 -- Regional Power Corporation
54. Principal functions 28
55. Other functions 29
56. Restriction on area in which may operate 30
Subdivision 6 -- Special function in respect of
certain assets and liabilities
57. Administration under delegated power 30
Subdivision 7 -- Provisions applying to functions
of all corporations
58. Corporations may act at their discretion 31
59. Where corporation may operate 32
60. Corporation to act in accordance with policy
instruments 32
61. Powers 32
62. Certain works exempt from planning laws 34
63. Corporation to act on commercial principles 35
64. Segregation of functions of corporations 36
65. Interruption or restriction of supply 36
66. Acquisition of subsidiary 37
67. Control of subsidiary 38
page iii
Electricity Corporations Bill 2003
Contents
68. Corporations Act, effect of section 67 38
69. Disposals that require a Ministerial order 39
70. Other transactions that require Ministerial approval 40
71. Exemptions from section 70 41
72. Minister to be consulted on major initiatives 41
73. Delegation 42
Division 2 -- Role of Economic Regulation
Authority
74. Advisory function 42
75. Public consultation 43
76. Advice to be published 43
Division 3 -- Arrangements authorised or
approved by Governor
77. Governor may make certain regulations 44
Division 4 -- Protection of persons dealing with a
corporation
78. Person dealing with corporation may make
assumptions 44
79. Third party may make assumptions 45
80. Assumptions that may be made 45
81. Exception to sections 78 and 79 46
Part 4 -- Operations of corporations,
imposition of requirements
Division 1 -- Initial arrangements between the
corporations
82. Definitions 47
83. Object of this Division 47
84. Minister may prescribe contracts 47
85. Matters that may be provided for 48
86. Amendment and cancellation 48
87. Enforcement 49
88. Advice of Economic Regulation Authority to be
obtained 49
89. Trade practices exemption 49
Division 2 -- Procurement of new electricity
generation
90. Obligations imposed 50
91. Repeal of section 90 and Schedule 4 50
page iv
Electricity Corporations Bill 2003
Contents
Part 5 -- Provisions about
accountability
Division 1 -- Strategic development plans
92. Draft strategic development plan to be submitted to
Minister 51
93. Transitional provision 51
94. Matters to be included in strategic development plan 51
95. Strategic development plan to be agreed if possible 52
96. Minister's powers in relation to draft strategic
development plan 53
97. Strategic development plan pending agreement 53
98. Minister's agreement to draft strategic development
plan 54
99. Modifications of strategic development plan 54
100. Concurrence of Treasurer 54
Division 2 -- Statement of corporate intent
101. Draft statement of corporate intent to be submitted to
Minister 55
102. Transitional provision 55
103. Matters to be included in statement of corporate intent 56
104. Statement of corporate intent to be agreed if possible 57
105. Minister's powers in relation to draft statement of
corporate intent 58
106. Statement of corporate intent pending agreement 58
107. Minister's agreement to draft statement of corporate
intent 59
108. Modifications of statement of corporate intent 59
109. Concurrence of Treasurer 60
Division 3 -- Quarterly and annual reports
110. Quarterly reports 60
111. Annual reports 61
112. Contents of annual reports 62
113. Deletion of commercially sensitive matters from
reports 63
Division 4 -- Ministerial directions, general
provisions
114. Directions to corporation 63
115. Minister may give directions 63
page v
Electricity Corporations Bill 2003
Contents
116. Directions contrary to commercial interest 64
117. When directions take effect 64
Division 5 -- Consultation and provision of
information
118. Consultation 65
119. Minister to have access to information 65
120. Provision of information in compiled form 66
121. Minister to be kept informed 67
122. Notice of financial difficulty 68
Division 6 -- Protection from liability
123. No liability for certain acts or omissions 69
Part 6 -- Financial provisions
Division 1 -- General
124. Bank account 70
125. Investment 70
126. Exemption from rates 70
Division 2 -- Payments to State
127. Payment of amount in lieu of rates 70
128. Determination of amounts under section 127 71
129. Dividend 71
Division 3 -- Borrowing
130. Borrowing 72
131. Borrowing limits 73
132. Hedging transactions 73
Division 4 -- Guarantees
133. Guarantees 74
134. Charges for guarantee 75
Division 5 -- Financial administration and audit
135. Limited application of Financial Administration and
Audit Act 1985 75
136. Financial administration and audit 76
Part 7 -- Miscellaneous
137. Supplementary provision for laying document before
Parliament 78
138. Execution of documents 78
139. Contract formalities 79
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Electricity Corporations Bill 2003
Contents
140. Delegation by Treasurer 80
141. Regulations 80
Schedule 1 -- Provisions about the
constitution and proceedings of
boards 81
1. Definition 81
2. Term of office 81
3. Resignation and removal 81
4. Chairperson and deputy chairperson 81
5. Alternate directors 82
6. Meetings 83
7. Telephone and video meetings 83
8. Resolution may be passed without meeting 83
9. Minutes and records 84
10. Leave of absence 85
11. Board to determine own procedures 85
Schedule 2 -- Provisions about the
duties of directors and related
provisions 86
Division 1 -- Preliminary 86
1. Interpretation 86
Division 2 -- Certain duties stated 86
2. Duty to act honestly 86
3. Duty to exercise reasonable care and diligence 87
4. Duty not to make improper use of information 87
5. Duty not to make improper use of position 87
6. Fiduciary duty 88
Division 3 -- Recovery from director 88
7. Payment of compensation may be ordered 88
8. Civil proceedings for recovery from director 88
Division 4 -- Relief from liability 89
9. Court may grant relief 89
10. Application for relief 89
11. Case may be withdrawn from jury 89
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Electricity Corporations Bill 2003
Contents
Division 5 -- Personal interests of directors,
disclosure and voting 90
12. Disclosure 90
13. Voting by interested directors 90
Division 6 -- Other prohibited conduct 91
14. Prohibition on loans to directors and related persons 91
15. Directors and auditors not to be indemnified for
certain matters 92
16. False or misleading information 93
Schedule 3 -- Provisions to be included
in constitution of subsidiary 96
1. Disposal of shares 96
2. Directors 96
3. Further shares 96
4. Subsidiaries of subsidiary 96
Schedule 4 -- Procurement of new
generation 98
1. Meaning of "the corporation" 98
2. Other definitions 98
3. Obligation to provide information 98
4. Obligation to conduct a competitive procurement
process for substantial new generation and to
minimise electricity costs 100
5. Obligation to disclose electricity procurement process 100
Schedule 5 -- Financial administration
and audit 101
Division 1 -- Preliminary 101
1. Interpretation 101
Division 2 -- Financial records 101
2. Obligation to keep financial records
(cf. s. 286 Corporations Act) 101
3. Physical format (cf. s. 288 Corporations Act) 101
4. Place where records are kept
(cf. s. 289 Corporations Act) 102
5. Director access (cf. s. 290 Corporations Act) 102
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Electricity Corporations Bill 2003
Contents
Division 3 -- Financial reporting 103
Subdivision 1 -- Annual financial reports and
directors' reports
6. Preparation of annual financial reports and directors'
reports (cf. s. 292 Corporations Act) 103
7. Contents of annual financial report
(cf. s. 295 Corporations Act) 103
8. Compliance with accounting standards and
regulations (cf. s. 296 Corporations Act) 104
9. True and fair view (cf. s. 297 Corporations Act) 104
10. Annual directors' report (cf. s. 298 Corporations Act) 104
11. Annual directors' report -- general information
(cf. s. 299 Corporations Act) 105
12. Annual directors' report -- specific information
(cf. s. 300 Corporations Act) 106
13. Annual directors' report -- other specific information
(cf. s. 300A Corporations Act) 108
14. Audit of annual financial report
(cf. s. 301 Corporations Act) 108
Subdivision 2 -- Audit and auditor's report
15. Audit opinion (cf. s. 307 Corporations Act) 108
16. Auditor General's report on annual financial report
(cf. s. 308 Corporations Act) 109
17. Auditor General's power to obtain information
(cf. s. 310 Corporations Act) 110
18. Assisting Auditor General
(cf. s. 312 Corporations Act) 110
Subdivision 3 -- Special provisions about
consolidated financial statements
19. Directors and officers of controlled entity to give
information (cf. s. 323 Corporations Act) 110
20. Auditor General's power to obtain information from
controlled entity (cf. s. 323A Corporations Act) 110
21. Controlled entity to assist the Auditor General
(cf. s. 323B Corporations Act) 111
22. Application of subdivision to entity that has ceased to
be controlled (cf. s. 323C Corporations Act) 111
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Electricity Corporations Bill 2003
Contents
Subdivision 4 -- Financial years of the corporation
and the entities it controls
23. Financial years (cf. s. 323D Corporations Act) 111
Division 4 -- Accounting standards 112
24. Accounting standards (cf. s. 334 Corporations Act) 112
25. Equity accounting (cf. s. 335 Corporations Act) 112
26. Interpretation of accounting standards
(cf. s. 337 Corporations Act) 112
27. Evidence of text of accounting standard
(cf. s. 339 Corporations Act) 112
Division 5 -- Exemptions and modifications 113
28. Treasurer's power to make specific exemption orders
(cf. s. 340 Corporations Act) 113
29. Criteria for specific exemption orders and class orders
(cf. s. 342 Corporations Act) 114
30. Extension of time 114
Division 6 -- Sanctions for contraventions of this
Schedule 115
31. Contravention of Divisions 2 and 3
(cf. s. 344 Corporations Act) 115
Division 7 -- Miscellaneous 115
32. Deadline for reporting to the Minister
(cf. s. 315 Corporations Act) 115
33. Annual financial reporting to the Minister
(cf. s. 314 Corporations Act) 115
34. Audit 116
35. Powers and duties of the Auditor General 116
Defined Terms
page x
Western Australia
LEGISLATIVE ASSEMBLY
Electricity Corporations Bill 2003
A Bill for
An Act to establish --
· three corporations each with particular responsibilities relating
to the provision of electricity in the South West of the State; and
· a corporation with responsibility for the provision of electricity
outside the South West of the State,
and to make related provisions.
The Parliament of Western Australia enacts as follows:
page 1
Electricity Corporations Bill 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Electricity Corporations Act 2003.
2. Commencement
5 This Act comes into operation on the day on which Part 2 of the
Electricity Legislation (Amendments and Transitional
Provisions) Act 2003 comes into operation.
3. Terms used in this Act
(1) In this Act, unless the contrary intention appears --
10 "board" means a board of directors provided for by section 8;
"chief executive officer" means an officer appointed under
section 14 and, except in sections 14 and 16, includes an
acting chief executive officer appointed under section 17;
"Commissioner for Public Sector Standards" means the
15 person for the time being holding the office created by
section 16(1) of the Public Sector Management Act 1994;
"corporation" means a body established by section 4;
"Corporations Act" means the Corporations Act 2001 of the
Commonwealth;
20 "director" means a member of a board;
"Economic Regulation Authority" means the Economic
Regulation Authority established by the Economic
Regulation Authority Act 2003;
"electricity" includes electrical energy of any kind however
25 produced, stored, transported or consumed;
"Electricity Generation Corporation" means the body
established by section 4(1)(a);
"Electricity Networks Corporation" means the body
established by section 4(1)(b);
page 2
Electricity Corporations Bill 2003
Preliminary Part 1
s. 3
"Electricity Retail Corporation" means the body established
by section 4(1)(c);
"executive officer" means a member of the staff of a
corporation designated under section 20 as an executive
5 officer;
"function" includes powers, duties and authorities, except in --
(a) Part 3 Division 1 Subdivisions 1 to 6; and
(b) sections 58 and 61;
"gas" means any gas or mixture of gases, whether naturally
10 occurring or manufactured, intended for use --
(a) as a fuel; or
(b) in any chemical process;
"member of staff " means a person engaged under section 18;
"non-executive director", in relation to a corporation, means a
15 director other than the chief executive officer if he or she is
a director of the corporation;
"Regional Power Corporation" means the body established by
section 4(1)(d);
"South West interconnected system" means the
20 interconnected transmission and distribution systems,
generating works and associated works --
(a) located in the South West of the State and extending
generally between Kalbarri, Albany and Kalgoorlie;
and
25 (b) into which electricity is supplied by one or more of
the electricity generation plants at Kwinana, Muja,
Collie and Pinjar,
as expanded or altered from time to time;
"subsidiary", in relation to a corporation, means --
30 (a) a body determined to be a subsidiary of the
corporation under subsection (2); and
page 3
Electricity Corporations Bill 2003
Part 1 Preliminary
s. 3
(b) an interest or other rights of the corporation in a unit
trust, joint venture or partnership where the interest
or other rights of the corporation in connection with
the unit trust, joint venture or partnership entitle the
5 corporation to --
(i) control the composition of the governing body
of the unit trust, joint venture or partnership;
(ii) cast, or control the casting of, more than
one-half of the maximum number of votes
10 that might be cast at a general meeting of the
unit trust, joint venture or partnership; or
(iii) control the business affairs of the unit trust,
joint venture or partnership;
"Treasurer" means the Treasurer of the State.
15 (2) Part 1.2 Division 6 of the Corporations Act applies for the
purpose of determining whether a body is a subsidiary of a
corporation.
page 4
Electricity Corporations Bill 2003
Electricity Corporations Part 2
Establishment of corporations Division 1
s. 4
Part 2 -- Electricity Corporations
Division 1 -- Establishment of corporations
4. Corporations established
(1) Each of the following is established as a body corporate with
5 perpetual succession --
(a) the Electricity Generation Corporation;
(b) the Electricity Networks Corporation;
(c) the Electricity Retail Corporation; and
(d) the Regional Power Corporation.
10 (2) Proceedings may be taken by or against a corporation in its
corporate name.
(3) A corporation may use, and operate under, one or more trading
names approved by the Minister being --
(a) an abbreviation or adaptation of its corporate name; or
15 (b) a name other than its corporate name.
5. Corporations not agents of Crown
A corporation is not an agent of the Crown and does not have
the status, immunities and privileges of the Crown.
6. Corporations and officers not part of Public Service
20 (1) A corporation is not, and is not to become, a public sector body
under the Public Sector Management Act 1994.
(2) Neither --
(a) the chief executive officer; nor
(b) any member of staff,
25 of a corporation is to be included in the Senior Executive
Service provided for by the Public Sector Management
Act 1994.
page 5
Electricity Corporations Bill 2003
Part 2 Electricity Corporations
Division 2 Boards of directors
s. 7
7. Head office of Regional Power Corporation
The head office of the Regional Power Corporation is to be
located in a part of the State that is not served by the South
West interconnected system.
5 Division 2 -- Boards of directors
8. Boards of directors
(1) A corporation is to have a board of directors comprising not less
than 4, nor more than 6, persons appointed by the Governor on
the nomination of the Minister.
10 (2) The chief executive officer of a corporation may be a director of
the corporation.
(3) A member of staff of a corporation is not to be a director of the
corporation.
(4) In making nominations for appointment to the board of a
15 corporation the Minister is to ensure that --
(a) each nomination is made only after consultation with the
board; and
(b) in the case of an appointment to the board of the
Regional Power Corporation, a nominee is a person
20 ordinarily resident in a part of the State that is not served
by the South West interconnected system so far as is
necessary for the majority of the directors of the
corporation, at the time of the appointment, to be
persons so resident.
25 (5) Where a vacancy occurs in the membership of a board, the
board may recommend a candidate to the Minister.
(6) Subsection (4)(a) does not apply --
(a) to the initial appointments to a board; or
(b) where the nominee was recommended by a board under
30 subsection (5).
page 6
Electricity Corporations Bill 2003
Electricity Corporations Part 2
Boards of directors Division 2
s. 9
9. Role of boards
The board of a corporation --
(a) is its governing body; and
(b) in the name of the corporation and subject to this Act, is
5 to perform the functions, determine the policies and
control the affairs of the corporation.
10. Provisions about the constitution and proceedings of boards
Schedule 1 has effect with respect to the directors and the board
of a corporation.
10 11. Remuneration
(1) A non-executive director of a corporation is to be paid out of the
funds of the corporation such remuneration and allowances as
are determined by the Minister in the case of that corporation
and that director.
15 (2) Remuneration is not to be paid to a non-executive director who
holds a full-time office or position that is remunerated out of
moneys appropriated by Parliament.
12. Conflict of duties
(1) In subsection (2) --
20 "public service officer" means a person who is employed in
the Public Service under Part 3 of the Public Sector
Management Act 1994.
(2) If a public service officer is a director --
(a) his or her duties as a director are to prevail if a conflict
25 arises between those duties and his or her other duties as
a public service officer; and
(b) he or she does not have any immunity of the Crown in
respect of the duties and liabilities imposed on directors
by this Act.
page 7
Electricity Corporations Bill 2003
Part 2 Electricity Corporations
Division 3 Staff
s. 13
13. Committees
(1) The board of a corporation may --
(a) appoint committees of such directors of the corporation
as it thinks fit; and
5 (b) discharge, alter or reconstitute any committee.
(2) A committee is to comply with any direction or requirement of
the board by which it was appointed.
(3) A committee may invite any person, including a member of
staff of the corporation concerned, to participate in a meeting of
10 the committee but such a person cannot vote on any resolution.
(4) Subject to subsection (2), a committee may determine its own
procedures.
Division 3 -- Staff
Subdivision 1 -- Chief executive officer
15 14. Appointment
(1) A corporation is to have a chief executive officer.
(2) The powers --
(a) to appoint and remove the chief executive officer of a
corporation; and
20 (b) to fix and alter his or her terms and conditions of
service,
are vested in the board of the corporation.
(3) It is a condition of service of the chief executive officer of the
Regional Power Corporation that, while he or she holds office,
25 his or her ordinary place of residence is to be in or near the town
where the head office of that corporation is located.
(4) Despite subsection (2), the Minister is to appoint the initial chief
executive officer of a corporation.
page 8
Electricity Corporations Bill 2003
Electricity Corporations Part 2
Staff Division 3
s. 15
(5) The board is to obtain the concurrence of the Minister before it
exercises any of the powers conferred by subsection (2).
15. Role of chief executive officer
Subject to the control of the board, the chief executive officer of
5 a corporation is responsible for, and has the powers needed to
administer, the day to day operations of the corporation.
16. Resignation
(1) The chief executive officer of a corporation may resign from
office by giving notice in writing to the board of the
10 corporation.
(2) If the chief executive officer's terms and conditions of service
deal with the matter of resignation, the right to resign under
subsection (1) can only be exercised in accordance with those
terms and conditions.
15 17. Acting appointments
The board of a corporation may appoint a person to act in place
of the chief executive officer of the corporation --
(a) during a vacancy in that office; or
(b) during any period when the chief executive officer is on
20 leave or otherwise unable to carry out his or her duties
or is absent from the State.
Subdivision 2 -- Other staff
18. Powers in relation to staff
(1) The power to engage and manage the staff of a corporation is
25 vested in its board.
(2) The power conferred by subsection (1) --
(a) includes powers to determine remuneration and other
terms and conditions of service and to remove, suspend
and discipline staff; and
page 9
Electricity Corporations Bill 2003
Part 2 Electricity Corporations
Division 3 Staff
s. 19
(b) does not preclude the delegation of any matter under
section 73.
(3) The remuneration of a member of staff and other terms and
conditions of employment are to be such that the overall
5 entitlements do not, on balance, disadvantage the person in
comparison to the entitlements he or she would have under --
(a) an applicable award, order or agreement under the
Industrial Relations Act 1979; or
(b) the Minimum Conditions of Employment Act 1993.
10 (4) Nothing in this Act, other than section 19(2), affects the
operation of Part VID of the Industrial Relations Act 1979.
19. Certain industrial matters excluded from employment
agreements
(1) There are excluded from the operation of Part II Division 2B of
15 the Industrial Relations Act 1979 --
(a) any matters dealt with by an instrument issued under
section 21 except --
(i) rates of remuneration;
(ii) leave;
20 (iii) hours of duty; and
(iv) matters that are similar to matters prescribed for
the purposes of section 99(1)(a)(iv) of the Public
Sector Management Act 1994;
and
25 (b) matters concerning the management of the staff that are
similar to matters prescribed for the purposes of
section 99(1)(c) of the Public Sector Management
Act 1994.
(2) A matter referred to in subsection (1) cannot be varied or
30 affected by an employer-employee agreement made under
Part VID of the Industrial Relations Act 1979.
page 10
Electricity Corporations Bill 2003
Electricity Corporations Part 2
Staff Division 3
s. 20
20. Designation of executive officers
For the purposes of section 29, the board of a corporation may
designate a member of the staff of the corporation as an
executive officer by resolution --
5 (a) passed by the board; and
(b) notified in writing to the employee,
and may in the same manner revoke such a designation.
Subdivision 3 -- Minimum standards for staff management
21. Standards to be set out in instrument
10 (1) The board of a corporation must, after consultation with the
Commissioner for Public Sector Standards, prepare and issue an
instrument setting out minimum standards of merit, equity and
probity applicable to the management of the staff of the
corporation.
15 (2) In subsection (1) --
"management" includes recruitment, selection, appointment,
transfer, secondment, performance management,
redeployment, discipline and termination of employment.
(3) In complying with subsection (1) a board is to have regard to
20 the principles set out in section 8 of the Public Sector
Management Act 1994.
(4) Section 14(5) is not affected by the requirements of
subsection (3).
(5) The Commissioner for Public Sector Standards may at any time
25 recommend to a board any amendment that he or she thinks
should be made to an instrument issued under this section.
(6) A board may --
(a) amend an instrument issued under this section; or
page 11
Electricity Corporations Bill 2003
Part 2 Electricity Corporations
Division 3 Staff
s. 22
(b) revoke it and substitute a new instrument,
but, except where subsection (5) applies, is to do so only after
consultation with the Commissioner for Public Sector
Standards.
5 22. Reports to Commissioner for Public Sector Standards
(1) The Commissioner for Public Sector Standards may in writing
require a board --
(a) to report to him or her on the observance of the
minimum standards in force under section 21; and
10 (b) to make the reports at such times, but not more often
than half-yearly,
as the Commissioner may specify.
(2) A board must comply with a requirement made under
subsection (1).
15 (3) The Commissioner for Public Sector Standards may at any time
report to the Minister on the content or observance of the
minimum standards in force under section 21.
Subdivision 4 -- Joint policy on staff transfers
23. Corporations to have joint policy approved by Minister
20 (1) The corporations must have, and comply with, a joint policy on
staff transfers that has been approved or determined by the
Minister under this section.
(2) The purpose of the joint policy referred to in subsection (1) is to
ensure that members of staff of the corporations and of their
25 subsidiaries have the opportunity to transfer between the
corporations and their subsidiaries --
(a) for temporary or permanent employment;
(b) on secondment or temporary deployment; or
page 12
Electricity Corporations Bill 2003
Electricity Corporations Part 2
Staff Division 3
s. 24
(c) for training,
without loss of entitlements.
(3) Within 2 months after the commencement of this Act, the
corporations must jointly prepare a draft policy statement for the
5 purposes of subsection (1) and submit it to the Minister.
(4) The Minister may --
(a) approve a draft policy statement submitted under
subsection (3); or
(b) request that it be amended and approve it in an amended
10 form.
(5) If a policy statement has not been approved by the Minister
within a period that he or she considers reasonable and notifies
to the corporations the Minister may determine the contents of
the policy statement.
15 24. Amendment of policy statement
(1) With the approval of the Minister, the corporations may
jointly --
(a) amend a policy statement for the time being in force
under section 23; or
20 (b) revoke it and replace it with another policy statement.
(2) The Minister may, in writing, direct the corporations --
(a) to amend a policy statement for the time being in force
under section 23 in a specified way; or
(b) to revoke it and replace it with another policy statement
25 containing specified provisions,
and the corporations are to comply with any such direction.
page 13
Electricity Corporations Bill 2003
Part 2 Electricity Corporations
Division 3 Staff
s. 25
25. Consultation with staff
A corporation must --
(a) in preparing the draft policy statement under
section 23(3); and
5 (b) before agreeing to make any amendment or replacement
under section 24(1),
consult the members of its staff and the staff of its subsidiaries
by making the draft statement or amendment, as the case may
be, available for their comment.
10 Subdivision 5 -- General
26. Superannuation
(1) A corporation may grant, or make provision for the grant of,
retirement benefits to members of staff of the corporation and,
for that purpose may --
15 (a) establish, manage and control; or
(b) enter into an arrangement with any body for the
establishment, management and control by such body
either alone or jointly with the corporation of,
any fund or scheme for the purpose of providing for such
20 retirement benefits.
(2) The corporation concerned may make contributions to any fund
or scheme referred to in subsection (1).
(3) Subsections (1) and (2) have effect subject to section 30 of the
State Superannuation Act 2000.
25 (4) In subsection (1) --
"members of staff" includes --
(a) a chief executive officer;
(b) dependants of members of staff; and
(c) former members of staff and their dependants.
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(5) Nothing in this section affects the operation of the State
Superannuation Act 2000 in relation to a corporation or any
member of staff.
Division 4 -- Duties of, and relating to, directors and staff
5 27. Duties of, and relating to, directors
Schedule 2 has effect in relation to --
(a) the duties of directors;
(b) the duties of a corporation in respect of directors and
related persons; and
10 (c) the other matters provided for in that Schedule.
28. Chief executive officer, duties imposed
(1) Schedule 2 clauses 2 to 11, 15 and 16 apply to the chief
executive officer of a corporation in his or her capacity as such
in addition, if he or she is a director of the corporation, to their
15 application to him or her in that capacity.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a former chief
executive officer in his or her capacity as such in addition, if he
or she was a director of the corporation, to their application to
him or her in the capacity of former director.
20 (3) This section and section 27 do not operate so as to make a chief
executive officer or a former chief executive officer liable to be
punished twice for the same act or omission.
29. Executive officers, duties imposed
(1) Schedule 2 clauses 2 to 5, 7 to 11, 15 and 16 apply to an
25 executive officer as if references to a director were replaced by
references to an executive officer.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a former executive
officer as if references to a former director were replaced by
references to a former executive officer.
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30. Members of staff, duties imposed
(1) Schedule 2 clauses 4, 5 and 7 to 11 apply to any person engaged
under section 18, other than an executive officer, as if
references to a director were replaced by references to a person
5 so engaged.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a person formerly
engaged under section 18, other than an executive officer, as if
references to a former director were replaced by references to a
person formerly so engaged.
10 31. Codes of conduct
(1) In this section and in sections 32 and 33 --
"members of staff" includes a chief executive officer.
(2) The board of a corporation must, after consultation with the
Commissioner for Public Sector Standards, prepare and issue a
15 code or codes of conduct setting out minimum standards of
conduct and integrity to be observed by members of staff of the
corporation.
(3) In complying with subsection (2) a board is to have regard to
the principles set out in section 9 of the Public Sector
20 Management Act 1994.
(4) A board may, after consultation with the Commissioner for
Public Sector Standards, amend any code of conduct in force
under subsection (2) or revoke it and substitute a new code of
conduct.
25 32. Reports to Commissioner for Public Sector Standards
(1) The Commissioner for Public Sector Standards may in writing
require the board of a corporation --
(a) to report to him or her on the observance of any code of
conduct in force under section 31 by members of staff of
30 the corporation; and
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(b) to make the reports at such times, but not more often
than half-yearly,
as the Commissioner may specify.
(2) A board must comply with a requirement made under
5 subsection (1).
(3) The Commissioner for Public Sector Standards may at any time
report to the Minister on any matter that the Commissioner
thinks should be brought to the Minister's attention relating to
the observance by members of staff of a corporation of a code
10 of conduct in force under section 31.
33. Reports to Minister
(1) The board of a corporation, when it delivers to the Minister its
annual report under section 111, is also to deliver to the
Minister a separate report on the observance of any code of
15 conduct in force under section 31 by members of staff of the
corporation.
(2) A board is to give to the Commissioner for Public Sector
Standards a copy of each report under subsection (1).
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Part 3 -- Functions and powers of corporations
Division 1 -- Functions, powers and related provisions
Subdivision 1 -- Preliminary
34. Terms used in this Division
5 (1) In this Division --
"acquire", in relation to electricity or gas, includes acquire by
way of exchange;
"ancillary services" means services that are necessary or
expedient for the security or reliability of an electricity
10 system;
"renewable sources" means sources of energy that are replaced
rapidly by natural processes, including sunlight, wind,
biomass, water in motion and geothermal activity;
"telecommunication services" means services for carrying
15 communications by one or more of the following means --
(a) guided electromagnetic energy;
(b) unguided electromagnetic energy;
(c) optical signals;
(d) other similar means.
20 (2) References in this Division to the performance of a
corporation's functions being limited to the South West
interconnected system are --
(a) in the case of a function relating to electricity, references
to performing the function for the purposes of that
25 system or customers served by that system;
(b) in the case of the functions of --
(i) supplying gas or steam; or
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(ii) providing telecommunication services,
references to performing those functions within the area
served by that system.
Subdivision 2 -- Electricity Generation Corporation
5 35. Principal functions
The functions of the Electricity Generation Corporation (in this
Subdivision called the "corporation") are, subject to this
Subdivision --
(a) to generate, purchase or otherwise acquire, and supply
10 electricity;
(b) to acquire, transport and supply --
(i) gas; and
(ii) steam;
(c) to provide ancillary services;
15 (d) by agreement with the Regional Power Corporation --
(i) to provide consultative and advisory services to
that corporation in relation to electricity
generation; and
(ii) to operate and maintain any electricity generation
20 plant or equipment on behalf of that corporation;
and
(e) to undertake, maintain and operate any works, system,
facilities, apparatus or equipment required for any
purpose mentioned in this section.
25 36. Other functions
It is also a function of the corporation --
(a) in addition to its function under section 35(d)(i), to use
its expertise and resources to provide consultative,
advisory or other services for profit;
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(b) to develop and turn to account any technology, software
or other intellectual property that relates to a function
under section 35;
(c) to manufacture and market any product that relates to a
5 function under section 35 or paragraph (b);
(d) to use or exploit for profit the fixed assets it has for the
purpose of performing a function under section 35 so
long as the proper performance of the function is not
affected;
10 (e) to do anything that the corporation determines to be
conducive or incidental to the performance of a function
under section 35 or this section; or
(f) to do anything that it is authorised to do by any other
written law.
15 37. Restriction on area in which may operate
(1) The performance of the corporation's functions under section 35
is limited to the South West interconnected system.
(2) Subsection (1) does not apply to the performance of the
corporation's functions under section 35(a) so far as the
20 performance involves only --
(a) the generation and supply of electricity from renewable
sources; or
(b) the purchase or other acquisition and supply of
electricity so generated.
25 (3) Subsection (1) does not apply to the performance of the
corporation's functions under subparagraph (ii) of section 35(d),
but the functions under that subparagraph do not authorise the
corporation to own or control any electricity generation plant or
equipment.
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38. Directions relating to new generation
(1) The Minister may, despite section 35(a), by instrument in
writing served on the corporation direct it not to --
(a) establish any new generation plant; or
5 (b) replace, refurbish or add to any generation plant
specified in the direction.
(2) Before the Minister amends or revokes an instrument under
subsection (1) he or she must obtain, and take into account, the
views of the Economic Regulation Authority on the effect that
10 the proposed amendment or revocation is likely to have on the
encouragement of competition in the generation, retail and
wholesale electricity markets.
39. Directions relating to the supply of gas
(1) In subsection (2) --
15 "specified" means specified in the instrument referred to in that
subsection.
(2) The Minister may, despite section 35(b), by instrument in
writing served on the corporation direct it not to sell or supply
gas --
20 (a) within, or for delivery or consumption within, a
specified area or specified areas of the State;
(b) in specified quantities; or
(c) to specified customers or a specified class of customers.
40. Provisions relating to instruments under section 38 or 39
25 (1) The corporation must comply with a direction in an instrument
under section 38 or 39.
(2) The Minister may --
(a) amend or revoke an instrument under section 38 or 39;
or
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(b) revoke the instrument and replace it with another
instrument.
(3) An amendment or revocation is to be made by instrument
served on the corporation.
5 (4) The Minister must, within 14 days after an instrument is served
on the corporation under subsection (3), section 38(1) or 39(2),
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 137.
41. Restriction on sale of electricity to consumers
10 (1) Except as may be authorised under subsection (3), the
corporation, or a subsidiary, must not, until after the expiry of
the designated period, supply electricity to a person under
section 35(a) for the person's own consumption.
(2) For the purposes of subsection (1) --
15 "the designated period" is --
(a) the period of 7 years; or
(b) if an order is made under section 43, the period of
10 years,
after the commencement of this Act.
20 (3) The Minister may, by order published in the Gazette --
(a) authorise the corporation in the performance of its
functions under section 35(a) to supply electricity to
specified customers or any specified class of customers
during the designated period; and
25 (b) amend or revoke an order made under paragraph (a).
42. Review of restriction
(1) The Minister is to review the operation of section 41(1) before
the expiration of 5 years from the commencement of this Act.
(2) The purpose of the review is to determine the effect that the
30 operation of section 41(1) has had, and is likely to have, on the
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encouragement of competition in the generation, retail and
wholesale electricity markets.
(3) Before the Minister carries out the review he or she must obtain,
and take into account, the views of the Economic Regulation
5 Authority on the matters mentioned in subsection (2).
43. Extension of designated period
(1) The Minister may by order made --
(a) after completion of the review required by section 42;
and
10 (b) before the expiry of the period of 7 years after the
commencement of this Act,
declare that the designated period is extended to 10 years after
that commencement.
(2) Sections 41 and 42 of the Interpretation Act 1984 apply to an
15 order under subsection (1) as if it were a regulation.
Subdivision 3 -- Electricity Networks Corporation
44. Principal functions
The functions of the Electricity Networks Corporation (in this
Subdivision called the "corporation") are --
20 (a) to manage, plan, develop, expand, enhance and reinforce
electricity transmission and distribution systems and
provide electricity transmission and distribution
services;
(b) to do anything that it is authorised or required to do by
25 Part 9 of the Electricity Industry Act 2003 (which relates
to the wholesale electricity market) and regulations and
market rules made under that Part;
(c) to provide ancillary services;
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(d) by agreement with the Regional Power Corporation, to
operate and maintain electricity transmission and
distribution systems on behalf of that corporation;
(e) by agreement with the Electricity Generation
5 Corporation, the Electricity Retail Corporation and the
Regional Power Corporation, to provide procurement,
financial and commercial services to those corporations;
(f) to provide telecommunication services; and
(g) to undertake, maintain and operate any works, system,
10 facilities, apparatus or equipment required for any
purpose referred to in this section.
45. Other functions
It is also a function of the corporation --
(a) in addition to its functions under section 44(d) and (e),
15 to use its expertise and resources, other than those
relating to the functions referred to in section 44(b), to
provide consultative, advisory and other services for
profit;
(b) to develop and turn to account any technology, software
20 or other intellectual property that relates to a function
under section 44(a) or (c) to (g);
(c) to manufacture and market any product that relates to a
function --
(i) under section 44(a) or (c) to (g); or
25 (ii) under paragraph (b) of this section;
(d) to use or exploit for profit the fixed assets it has for the
purpose of performing a function under section 44(a) or
(c) to (g) so long as the proper performance of the
function is not affected;
30 (e) to do anything that the corporation determines to be
conducive or incidental to the performance of a function
under section 44 or this section; or
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(f) to do anything that it is authorised to do by any other
written law.
46. Restriction on area in which may operate
(1) The performance of the corporation's functions under section 44
5 is limited to the South West interconnected system.
(2) Subsection (1) does not apply to the performance of the
corporation's functions under section 44(d) and (e), but the
functions under section 44(d) or (g) do not authorise the
corporation to own or control any electricity transmission or
10 distribution system.
Subdivision 4 -- Electricity Retail Corporation
47. Principal functions
The functions of the Electricity Retail Corporation (in this
Subdivision called the "corporation") are --
15 (a) to supply electricity to consumers;
(b) to purchase or otherwise acquire electricity for the
purposes of paragraph (a);
(c) to generate electricity, but only after the expiry of the
designated period under section 51;
20 (d) to provide ancillary services;
(e) by agreement with the Regional Power Corporation, to
provide retail support services to that corporation;
(f) to acquire gas and supply it to consumers;
(g) to provide telecommunication services; and
25 (h) to undertake, maintain and operate any works, system,
facilities, apparatus or equipment required for any
purpose referred to in paragraph (a), (c), (e) or (g).
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48. Other functions
It is also a function of the corporation --
(a) in addition to its function under section 47(e), to use its
expertise and resources to provide consultative, advisory
5 or other services for profit;
(b) to develop and turn to account any technology, software
or other intellectual property that relates to a function
under section 47;
(c) to manufacture and market any product that relates to a
10 function under section 47 or paragraph (b);
(d) to use or exploit for profit the fixed assets it has for the
purpose of performing a function under section 47 so
long as the proper performance of the function is not
affected;
15 (e) to do anything that the corporation determines to be
conducive or incidental to the performance of a function
under section 47 or this section; or
(f) to do anything that it is authorised to do by any other
written law.
20 49. Restriction on area in which may operate
(1) The performance of the corporation's functions under section 47
is limited to the South West interconnected system.
(2) Subsection (1) does not apply to the performance of the
corporation's functions under section 47(e).
25 50. Directions relating to the supply of gas
(1) In subsection (2) --
"specified" means specified in the instrument referred to in that
subsection.
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(2) The Minister may, despite section 47(f), by instrument in
writing served on the corporation direct it not to sell or supply
gas --
(a) within, or for delivery or consumption within, a
5 specified area or specified areas of the State;
(b) in specified quantities; or
(c) to specified customers or a specified class of customers.
(3) The corporation must comply with a direction in an instrument
under subsection (2).
10 (4) The Minister may --
(a) amend or revoke an instrument under subsection (2); or
(b) revoke the instrument and replace it with another
instrument.
(5) An amendment or revocation is to be made by instrument
15 served on the corporation.
(6) The Minister must, within 14 days after an instrument is served
on the corporation under this section, cause a copy of it to be
laid before each House of Parliament or dealt with in
accordance with section 137.
20 51. Prohibition on generation of electricity for a designated
period
(1) The corporation, or a subsidiary of the corporation, must not
generate electricity until after the expiry of the designated
period.
25 (2) For the purposes of subsection (1) --
"the designated period" is --
(a) the period of 7 years; or
(b) if an order is made under section 53, the period of
10 years,
30 after the commencement of this Act.
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52. Review of prohibition
(1) The Minister is to review the operation of section 51 before the
expiration of 5 years from the commencement of this Act.
(2) The purpose of the review is to determine the effect that the
5 operation of section 51 has had, and is likely to have, on the
encouragement of competition in the generation, retail and
wholesale electricity markets.
(3) Before the Minister carries out the review he or she must obtain,
and take into account, the views of the Economic Regulation
10 Authority on the matters mentioned in subsection (2).
53. Extension of designated period
(1) The Minister may by order made --
(a) after completion of the review required by section 52;
and
15 (b) before the expiry of the period of 7 years after the
commencement of this Act,
declare that the designated period is extended to 10 years after
that commencement.
(2) Sections 41 and 42 of the Interpretation Act 1984 apply to an
20 order under subsection (1) as if it were a regulation.
Subdivision 5 -- Regional Power Corporation
54. Principal functions
The functions of the Regional Power Corporation (in this
Subdivision called the "corporation") are --
25 (a) to generate, purchase or otherwise acquire electricity;
(b) to manage, plan, develop, expand, enhance and reinforce
electricity transmission and distribution systems and
provide electricity transmission and distribution
services;
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(c) to supply electricity to consumers;
(d) to acquire, transport and supply --
(i) gas; and
(ii) steam;
5 (e) to provide ancillary services;
(f) by agreement with the Electricity Generation
Corporation, to operate and maintain any electricity
generation plant or equipment on behalf of that
corporation;
10 (g) to provide telecommunication services; and
(h) to undertake, maintain and operate any works, system,
facilities, apparatus or equipment required for any
purpose mentioned in this section.
55. Other functions
15 It is also a function of the corporation --
(a) to use its expertise and resources to provide
consultative, advisory or other services for profit;
(b) to develop and turn to account any technology, software
or other intellectual property that relates to a function
20 under section 54;
(c) to manufacture and market any product that relates to a
function under section 54 or paragraph (b);
(d) to use or exploit for profit the fixed assets it has for the
purpose of performing a function under section 54 so
25 long as the proper performance of the function is not
affected;
(e) to do anything that the corporation determines to be
conducive or incidental to the performance of a function
under section 54 or this section; or
30 (f) to do anything that it is authorised to do by any other
written law.
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56. Restriction on area in which may operate
(1) The performance of the corporation's functions under
section 54(a) to (e) and (g) and (h) relating to electricity is
limited to electricity systems in those parts of the State (the
5 "area of operations") that are not served by the South West
interconnected system.
(2) The performance of the corporation's functions of --
(a) supplying gas or steam; or
(b) providing telecommunication services,
10 is limited to supply or provision within the area of operations.
Subdivision 6 -- Special function in respect of certain assets
and liabilities
57. Administration under delegated power
(1) In this section --
15 "unallocated asset or liability" means an asset, right or
liability that, under section 46 of the Electricity Legislation
(Amendments and Transitional Provisions) Act 2003 (the
"Transitional Act"), is to be dealt with by the Minister;
"Minister" means the Minister to whom the administration of
20 the Transitional Act is committed.
(2) Regulations may be made --
(a) declaring --
(i) any specified unallocated asset or liability; or
(ii) any specified group of such assets or liabilities,
25 to be an asset or liability or group to which this section
applies (the "declared matters"); and
(b) designating a corporation to act in respect of the
declared matters.
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(3) If regulations are in force designating a corporation to act in
respect of declared matters --
(a) the Minister may, in writing, delegate his or her powers
or duties under section 43 of the Transitional Act in
5 respect of those matters to that corporation; and
(b) it is a function of the corporation to exercise the powers
or duties so delegated.
(4) A corporation exercising or performing a power or duty that has
been delegated to it under this section is to be taken to do so in
10 accordance with the terms of the delegation, unless the contrary
is shown.
(5) A corporation may exercise or perform a power or duty that has
been delegated to it under this section through an officer or
agent.
15 (6) The regulations may prescribe provisions of this Act that --
(a) do not apply; or
(b) apply with specified modifications,
to the declared matters or the exercise of the powers or duties
under this section.
20 Subdivision 7 -- Provisions applying to functions of all corporations
58. Corporations may act at their discretion
The fact that a corporation has a function given to it by this Act
does not impose a duty on it to do any particular thing and,
subject to --
25 (a) this Act; and
(b) any direction given to the corporation under this Act,
it has a discretion as to how and when it performs the function.
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59. Where corporation may operate
A corporation may perform any of its functions --
(a) outside the State; and
(b) except as provided in this Division, in any area of the
5 State.
60. Corporation to act in accordance with policy instruments
A corporation must perform its functions in accordance with its
strategic development plan and its statement of corporate intent
as existing from time to time.
10 61. Powers
(1) In subsection (3)(g) --
"business arrangement" means a company, a partnership, a
trust, a joint venture, or an arrangement for sharing profits;
"participate" includes form, promote, establish, enter, manage,
15 dissolve, wind up, and do anything incidental to
participating in a business arrangement.
(2) A corporation has all the powers it needs to perform its
functions under this Act or any other written law.
(3) A corporation may for the purpose of performing any
20 function --
(a) acquire, hold, manage, improve, develop and dispose of
any real or personal property;
(b) enter into any contract or arrangement;
(c) apply for the grant or transfer of any mining tenement,
25 petroleum licence or other licence or authority to the
corporation;
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(d) acquire, establish and operate --
(i) any undertaking (including any necessary
tenements and licences) for the production,
recovery, conversion, processing or transport of
5 any fuel or source of energy; and
(ii) any associated undertaking;
(e) produce and deal in --
(i) any by-product resulting from; or
(ii) any equipment, facilities or system associated
10 with,
the performance of any function of the corporation;
(f) appoint agents or engage persons under contracts for
services to provide professional, technical or other
assistance to the corporation;
15 (g) subject to sections 66 and 70, participate in any business
arrangement and acquire, hold and dispose of shares,
units or other interests in, or relating to, a business
arrangement;
(h) carry out any investigation, survey, exploration or
20 boring;
(i) collaborate in, carry out, or procure the carrying out of,
research and publish information that results from the
research;
(j) for the purposes of section 36(b), 45(b), 48(b) or 55(b),
25 as the case may be, apply for, hold, exploit and dispose
of any patent, patent rights, copyright or similar rights;
and
(k) promote and market the corporation and its activities.
(4) A corporation may --
30 (a) make gifts for charitable purposes or for other purposes
of benefit to the community or a section of the
community;
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(b) undertake community service obligations within the
meaning in section 103(1);
(c) make any ex gratia payment that the board considers to
be in the corporation's interest; and
5 (d) accept any gift, devise or bequest if it is absolute, or
subject to conditions that are within the functions of the
corporation.
(5) Subsection (3) or (4) does not limit subsection (2) or the other
powers of a corporation under this Act or any other written law.
10 (6) If the generality of a power conferred on a corporation by this
Act is restricted by a provision of the Energy Operators
(Powers) Act 1979 that restriction applies, despite this Act.
62. Certain works exempt from planning laws
(1) In this section --
15 "corporation" means each of --
(a) the Electricity Networks Corporation; and
(b) the Regional Power Corporation;
"electricity distribution system" and "electricity
transmission system" have the meanings given by
20 section 89 of the Electricity Transmission and Distribution
Systems (Access) Act 1994.
(2) This section applies to the carrying out by a corporation of
works for the extension, expansion or enhancement of an
electricity distribution system or an electricity transmission
25 system.
(3) Despite sections 7B(7) and 10AB(1) of the Town Planning and
Development Act 1928, a corporation is not required to comply
with the provisions of --
(a) an interim development order; or
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(b) a town planning scheme,
in force under that Act in carrying out the works referred to in
subsection (2).
(4) However, a corporation --
5 (a) is to carry out the works, so far as is reasonably
practicable --
(i) in keeping with the design and intent of; and
(ii) so as not to destroy the amenity of,
any relevant scheme or order referred to in
10 subsection (3); and
(b) is to consult with the responsible authority at the time
when a proposal for any work referred to in
subsection (2) is being formulated to ensure that
paragraph (a) will be complied with.
15 63. Corporation to act on commercial principles
(1) A corporation in performing its functions must --
(a) act in accordance with prudent commercial principles;
and
(b) endeavour to make a profit, consistently with
20 maximising its long term value.
(2) In respect of the function of the Electricity Networks
Corporation referred to in section 44(b) --
(a) subsection (1) does not apply; and
(b) the corporation is required to ensure, so far as is
25 practicable, that the reasonable cost of performing the
function does not exceed its revenue from doing so.
(3) If there is any conflict or inconsistency between the duty
imposed by subsection (1) and --
(a) a direction given under this Act; or
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Electricity Corporations Bill 2003
Part 3 Functions and powers of corporations
Division 1 Functions, powers and related provisions
s. 64
(b) any provision in --
(i) Schedule 4; or
(ii) Schedule 5 or 6 to the Electricity Transmission
and Distribution Systems (Access) Act 1994,
5 the direction, or provision of that Schedule, prevails.
64. Segregation of functions of corporations
(1) Regulations may be made --
(a) prescribing segments into which the functions or
operations of a corporation are to be divided; and
10 (b) providing for, and in relation to --
(i) the segregation of any segment so prescribed in
respect of a corporation from the other functions
or operations of the corporation; or
(ii) the segregation from a corporation of any
15 subsidiary of the corporation that has any
functions or operations of a specified kind.
(2) Regulations referred to in subsection (1) may make provision
for, or in relation to --
(a) the keeping of accounts and records;
20 (b) financial reporting;
(c) the apportionment of income, expenditure, assets and
liabilities;
(d) the protection of information;
(e) the conduct of officers of a corporation; and
25 (f) controls and procedures, and the conferral of functions
on a specified person, to ensure that any required
segregation is effective.
65. Interruption or restriction of supply
(1) A corporation may interrupt, suspend or restrict the generation,
30 transport or supply of electricity if in its opinion it is necessary
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Functions and powers of corporations Part 3
Functions, powers and related provisions Division 1
s. 66
to do so because of an accident, emergency, potential danger or
other unavoidable cause.
(2) Subsection (1) does not apply if section 31(1) of the Electricity
Industry Act 2003 applies to the activity that is interrupted,
5 suspended or restricted.
(3) A corporation is not liable for any loss or damage which arises
from any such interruption, suspension or restriction except to
the extent that an agreement to which the corporation is a party
provides otherwise.
10 (4) This section is in addition to the provisions of --
(a) sections 48, 57 and 58 of the Energy Operators
(Powers) Act 1979; and
(b) regulations made under section 124 of the Electricity
Industry Act 2003,
15 and does not limit those provisions.
(5) This section has effect despite any provision of Schedule 5 or 6
to the Electricity Transmission and Distribution Systems
(Access) Act 1994.
66. Acquisition of subsidiary
20 (1) A corporation must obtain the approval of the Minister before
it --
(a) forms or acquires a subsidiary; or
(b) enters into any transaction that will result in the
formation or acquisition of a subsidiary.
25 (2) The Minister is not to give approval under subsection (1) except
with the Treasurer's concurrence.
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Electricity Corporations Bill 2003
Part 3 Functions and powers of corporations
Division 1 Functions, powers and related provisions
s. 67
67. Control of subsidiary
(1) A corporation must ensure that the constitution of every
subsidiary of the corporation that under a written law or the
Corporations Act is required to have a constitution --
5 (a) contains provisions to the effect of those required by
Schedule 3;
(b) is consistent with this Act; and
(c) is not amended in a way that is inconsistent with this
Act.
10 (2) A corporation must, to the maximum extent practicable, ensure
that every subsidiary of the corporation complies with its
constitution and with this Act.
(3) A director, the chief executive officer or a member of staff of a
corporation may with the approval of the board of the
15 corporation become --
(a) a member of the committee of an incorporated
association; or
(b) a director of a company,
that is or is to be a subsidiary of the corporation and may
20 represent the interests of the corporation on that committee or
the board of directors of that company.
(4) The provisions of this Act prevail to the extent of any
inconsistency with the constitution of any subsidiary of a
corporation.
25 68. Corporations Act, effect of section 67
(1) Neither --
(a) section 67(1) or (2); nor
(b) provisions referred to in section 67(1)(a) included in the
constitution of a subsidiary,
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Electricity Corporations Bill 2003
Functions and powers of corporations Part 3
Functions, powers and related provisions Division 1
s. 69
make a corporation or the Minister a director of a subsidiary for
the purposes of the Corporations Act.
(2) The following provisions are declared to be Corporations
legislation displacement provisions for the purposes of
5 section 5G of the Corporations Act in relation to the
Corporations legislation as defined in section 9 of the
Corporations Act --
(a) section 67;
(b) subsection (1); and
10 (c) Schedule 3.
69. Disposals that require a Ministerial order
(1) In this section --
"dispose of " means enter into any arrangement or series of
arrangements that results in a corporation ceasing to have at
15 least 75% of the beneficial interest in a significant asset;
"significant asset" means any property of a corporation
(including any contract, shares in a company or interest in a
joint venture) that has a value exceeding the greater of --
(a) the sum equal to 5% of the written down value of the
20 corporation's consolidated fixed assets and
investments, as appearing in its last audited accounts;
or
(b) the sum of $100 million.
(2) A corporation must not dispose of a significant asset except
25 under and in accordance with an order (a "disposal order")
made by the Minister under this section.
(3) A corporation that intends to dispose of a significant asset must
consult with the Minister before undertaking the disposal.
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Electricity Corporations Bill 2003
Part 3 Functions and powers of corporations
Division 1 Functions, powers and related provisions
s. 70
(4) The Minister may make a disposal order --
(a) authorising a corporation to dispose of a significant asset
and to do so on such terms and conditions as may be
specified in the order; and
5 (b) if the Minister thinks fit, prescribing the process to be
followed by the corporation in undertaking the disposal.
(5) Sections 41, 42, 43 and 44 of the Interpretation Act 1984 apply
to a disposal order as if it were a regulation.
70. Other transactions that require Ministerial approval
10 (1) In this section and section 71 --
"transaction" --
(a) includes a contract or other arrangement or any
exercise of the power conferred by section 61(3)(g);
but
15 (b) does not include --
(i) a disposal to which section 69 applies; or
(ii) any transaction under section 130 or 132.
(2) Despite anything in this Part, a corporation must obtain the
approval of the Minister before a transaction to which this
20 section applies is entered into.
(3) This section applies to a transaction if --
(a) it is to be entered into by a corporation or a subsidiary of
the corporation;
(b) it is not exempt under section 71; and
25 (c) the corporation's liability exceeds the prescribed
amount.
(4) For the purposes of subsection (3)(c) a corporation's liability
is --
(a) the amount or value of the consideration; or
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Electricity Corporations Bill 2003
Functions and powers of corporations Part 3
Functions, powers and related provisions Division 1
s. 71
(b) the amount to be paid or received by the corporation or a
subsidiary,
ascertained as at the time when the transaction is entered into.
(5) The prescribed amount in relation to a corporation is the greater
5 of --
(a) the sum equal to 1% of the written down value of the
consolidated fixed assets and investments of the
corporation, as appearing in its last audited accounts; or
(b) the sum of $20 million.
10 71. Exemptions from section 70
(1) The Minister may by order exempt a transaction or class of
transaction from the operation of section 70 either
unconditionally or on specified conditions.
(2) An order under subsection (1) may be revoked or amended by
15 the Minister.
(3) An order under subsection (1) or (2) is to show sufficient
particulars of the transactions or class of transaction to which it
relates to enable the transaction or class to be identified.
(4) The Minister must, within 14 days after an order under
20 subsection (1) or (2) is made, cause a copy of it to be laid before
each House of Parliament or dealt with in accordance with
section 137.
72. Minister to be consulted on major initiatives
A corporation must consult the Minister before it enters upon a
25 course of action that in its opinion --
(a) amounts to a major initiative; or
(b) is likely to be of significant public interest,
whether or not the course of action involves a transaction to
which section 70 applies.
page 41
Electricity Corporations Bill 2003
Part 3 Functions and powers of corporations
Division 2 Role of Economic Regulation Authority
s. 73
73. Delegation
(1) A corporation may delegate any power or duty of the
corporation under --
(a) another provision of this Act; or
5 (b) another written law.
(2) A delegation under subsection (1) may be made to --
(a) a director or directors;
(b) a chief executive officer;
(c) a member or members of staff;
10 (d) a committee established under section 13; or
(e) any other person.
(3) The delegation must be in writing executed by the corporation.
(4) A person to whom a power or duty is delegated under this
section cannot delegate that power or duty.
15 (5) A person exercising or performing a power or duty that has been
delegated to the person under this section is to be taken to do so
in accordance with the terms of the delegation, unless the
contrary is shown.
(6) Nothing in this section limits the ability of a corporation to
20 perform a function through an officer or agent.
Division 2 -- Role of Economic Regulation Authority
74. Advisory function
It is a function of the Economic Regulation Authority (the
"Authority") to give advice for the purposes of
25 sections 38(2), 42(3) and 52(3) and to make any
recommendation the Authority thinks fit.
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Electricity Corporations Bill 2003
Functions and powers of corporations Part 3
Role of Economic Regulation Authority Division 2
s. 75
75. Public consultation
(1) Before the Authority gives advice on a matter under section 74
it must seek public comment on the matter in accordance with
subsection (2).
5 (2) The Authority must --
(a) cause a notice giving a general description of the matter
to be --
(i) published in an issue of a daily newspaper
circulating throughout the State; and
10 (ii) posted on an internet website maintained by the
Authority;
and
(b) include in the notice the following information --
(i) a statement that written submissions on the
15 matter may be made to the Authority by any
person within a specified period; and
(ii) the address to which the submissions may be
delivered or posted.
(3) The period specified under subsection (2)(b)(i) is not to be less
20 than 30 days after the notice under subsection (2)(a) has been
published.
(4) The Authority must have regard to any submission made in
accordance with the notice.
76. Advice to be published
25 The Authority is to publish any advice given for the purposes of
section 74 by either or both of the following means --
(a) by publishing the advice in a newspaper circulating
throughout the State; or
(b) by posting the advice on an internet website maintained
30 by the Authority.
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Electricity Corporations Bill 2003
Part 3 Functions and powers of corporations
Division 3 Arrangements authorised or approved by Governor
s. 77
Division 3 -- Arrangements authorised or approved
by Governor
77. Governor may make certain regulations
(1) Regulations may be made authorising or approving any
5 arrangement, act, matter or thing in relation to a corporation for
the purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Code.
(2) Regulations referred to in subsection (1) may authorise or
approve --
10 (a) any arrangement involving or relating to a corporation
or any subsidiary or the performance by a corporation or
any subsidiary of any of its functions;
(b) any act or thing done or proposed to be done in the State
by a corporation or any subsidiary in the performance of
15 its functions; or
(c) any other matter or thing necessary or convenient to
facilitate or give effect to the authorisation or approval.
(3) For the purposes of this section --
(a) "arrangement" includes any contract, arrangement or
20 understanding, or any market practice or market or
customer restriction, division, allocation or segregation
of any nature, or a course of conduct or dealing; and
(b) a reference to any act or thing done or proposed to be
done includes a reference to an omission or proposed
25 omission to do that act or thing.
Division 4 -- Protection of persons dealing with a corporation
78. Person dealing with corporation may make assumptions
(1) A person having dealings with a corporation is entitled to make
the assumptions mentioned in section 80.
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Electricity Corporations Bill 2003
Functions and powers of corporations Part 3
Protection of persons dealing with a corporation Division 4
s. 79
(2) In any proceedings in relation to the dealings, any assertion by
the corporation concerned that the matters that the person is
entitled to assume were not correct must be disregarded.
79. Third party may make assumptions
5 (1) A person (the "third party") having dealings with a person (the
"second party") who has acquired, or purports to have
acquired, title to property from a corporation (whether directly
or indirectly) is entitled to make the assumptions mentioned in
section 80.
10 (2) In any proceedings in relation to the dealings, any assertion by
the corporation concerned or the second party that the matters
that the third party is entitled to assume were not correct must
be disregarded.
80. Assumptions that may be made
15 The assumptions that a person is, because of section 78 or 79,
entitled to make are --
(a) that, at all relevant times, this Act has been complied
with;
(b) that a person who is held out by a corporation to be a
20 director, the chief executive officer, an executive officer,
a member of staff or an agent of a particular kind --
(i) has been properly appointed; and
(ii) has authority to perform the functions
customarily performed by a director, the chief
25 executive officer, an executive officer, a member
of staff or an agent of that kind, as the case may
require;
(c) that a member of staff or agent of a corporation who has
authority to issue a document on behalf of a corporation
30 has authority to warrant that the document is genuine;
(d) that a member of staff or agent of a corporation who has
authority to issue a certified copy of a document on
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Electricity Corporations Bill 2003
Part 3 Functions and powers of corporations
Division 4 Protection of persons dealing with a corporation
s. 81
behalf of the corporation has authority to warrant that
the copy is a true copy;
(e) that a document has been properly sealed by a
corporation if --
5 (i) it bears what appears to be an imprint of the
corporation's seal; and
(ii) the sealing of the document appears to comply
with section 138;
and
10 (f) that the directors, chief executive officer, members of
staff and agents of a corporation have properly
performed their duties to the corporation.
81. Exception to sections 78 and 79
(1) Despite sections 78 and 79, a person is not entitled to assume a
15 matter mentioned in section 80 if --
(a) the person has actual knowledge that the assumption
would be incorrect; or
(b) because of the person's connection or relationship with
the corporation concerned, the person ought to know
20 that the assumption would be incorrect.
(2) If, because of subsection (1), a person is not entitled to make a
particular assumption in relation to dealings with a corporation,
section 78(2) does not apply to any assertion by the corporation
in relation to the assumption.
25 (3) If, because of subsection (1), the third party is not entitled to
make a particular assumption in relation to an acquisition or
purported acquisition from a corporation of title to property,
section 79(2) does not apply to any assertion by the corporation
or the second party in relation to the assumption.
page 46
Electricity Corporations Bill 2003
Operations of corporations, imposition of requirements Part 4
Initial arrangements between the corporations Division 1
s. 82
Part 4 -- Operations of corporations, imposition of
requirements
Division 1 -- Initial arrangements between the corporations
82. Definitions
5 In this Division --
"corporation" includes a subsidiary of a corporation;
"specified" means specified in a prescribed contract.
83. Object of this Division
The object of this Division is to confer on the Minister power to
10 determine arrangements between the corporations in order to --
(a) encourage the development of competition in --
(i) the generation, wholesaling and retailing of
electricity; and
(ii) the retailing of gas;
15 and
(b) establish the terms and conditions of the initial
arrangements that are to have effect between them.
84. Minister may prescribe contracts
(1) The Minister may by order prescribe provisions that are to have
20 effect as a contract (a "prescribed contract") between --
(a) a specified corporation and another specified
corporation; or
(b) 2 or more specified corporations.
(2) The Minister is to cause an order under subsection (1) to be
25 served on each of the corporations concerned.
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Electricity Corporations Bill 2003
Part 4 Operations of corporations, imposition of requirements
Division 1 Initial arrangements between the corporations
s. 85
85. Matters that may be provided for
(1) A prescribed contract may provide for such matters as the
Minister considers necessary or expedient to achieve a purpose
mentioned in section 83(a) or (b).
5 (2) Without limiting subsection (1), a prescribed contract may
include provision for --
(a) a specified amount of electricity, or an amount of
electricity determined in a specified manner, to be
supplied or made available by a corporation to another
10 corporation for a specified purpose; and
(b) the prices to be paid or price limits that are to apply.
(3) A prescribed contract may set out --
(a) the rights and obligations of the corporations concerned;
(b) arrangements and procedures that are to apply between
15 them;
(c) requirements that are to be complied with by each of the
corporations; and
(d) any incidental or supplementary provision that the
Minister considers it necessary or expedient to include
20 in the contract.
86. Amendment and cancellation
(1) The Minister may --
(a) vary or add to the provisions of a prescribed contract; or
(b) cancel the contract and replace it with another
25 prescribed contract.
(2) The Minister is to cancel, without replacing, a prescribed
contract made for the purpose mentioned in section 83(a)(i)
when he or she considers that the State electricity market is
operating in an open and competitive manner.
30 (3) The Minister is to cancel, without replacing, a prescribed
contract made for the purpose mentioned in section 83(a)(ii)
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Electricity Corporations Bill 2003
Operations of corporations, imposition of requirements Part 4
Initial arrangements between the corporations Division 1
s. 87
when he or she considers that the State retail gas market is
operating in an open and competitive manner.
(4) An amendment or cancellation is to be made by order served on
the corporations concerned.
5 87. Enforcement
(1) A prescribed contract is taken to have been entered into between
the corporations concerned, and the rights and obligations under
the contract are enforceable accordingly.
(2) A prescribed contract has effect despite any other provision of
10 this Act.
88. Advice of Economic Regulation Authority to be obtained
(1) Before the Minister cancels a prescribed contract under
section 86(2) or (3), he or she must obtain, and take into
account, the views of the Economic Regulation Authority on the
15 effect that the proposed cancellation is likely to have on the
encouragement of competition in --
(a) the generation, wholesaling and retailing of electricity;
or
(b) the retailing of gas,
20 as the case may be.
(2) It is a function of the Economic Regulation Authority to give
advice for the purposes of subsection (1).
89. Trade practices exemption
For the purposes of the Trade Practices Act 1974 of the
25 Commonwealth and the Competition Code, each of the
following --
(a) the making of an order under section 84(1) or 86;
(b) a prescribed contract under this Division;
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Electricity Corporations Bill 2003
Part 4 Operations of corporations, imposition of requirements
Division 2 Procurement of new electricity generation
s. 90
(c) anything done under, or to give effect to, a prescribed
contract,
is specifically authorised to the extent that it would otherwise
contravene that Act or that Code.
5 Division 2 -- Procurement of new electricity generation
90. Obligations imposed
Schedule 4 has effect with respect to the procurement of new
electricity generation.
91. Repeal of section 90 and Schedule 4
10 (1) Section 90 and Schedule 4 may be repealed by regulations made
by the Governor on the recommendation of the Minister.
(2) The Minister is not to make a recommendation for the purposes
of subsection (1) unless he or she is satisfied that either --
(a) there is a wholesale electricity market in operation under
15 Part 9 of the Electricity Industry Act 2003; or
(b) the procurement of any new electricity generation that is
in progress under Schedule 7 to the Electricity
Corporation Act 1994 immediately before the
commencement of this Act has been completed.
page 50
Electricity Corporations Bill 2003
Provisions about accountability Part 5
Strategic development plans Division 1
s. 92
Part 5 -- Provisions about accountability
Division 1 -- Strategic development plans
92. Draft strategic development plan to be submitted to
Minister
5 (1) The board of a corporation must in each year prepare, and
submit to the Minister for his or her agreement, a draft strategic
development plan for the corporation and any subsidiary.
(2) The Minister may from time to time, with the concurrence of
the Treasurer, by notice in writing to a corporation --
10 (a) fix a day in each year by which a draft strategic
development plan is to be submitted under
subsection (1); or
(b) cancel a notice given under paragraph (a).
(3) Each draft strategic development plan is to be submitted not
15 later than --
(a) the day fixed under subsection (2); or
(b) if there is for the time being no day so fixed, 2 months
before the start of the next financial year.
93. Transitional provision
20 The first strategic development plan of a corporation is to be in
respect of the next full financial year after the commencement
of this Act.
94. Matters to be included in strategic development plan
(1) The strategic development plan must set out economic and
25 financial objectives and operational targets and how those
objectives and targets will be achieved.
(2) The matters which are to be considered in the preparation of the
strategic development plan include competitive strategies
(where appropriate), pricing of products, productivity levels,
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Electricity Corporations Bill 2003
Part 5 Provisions about accountability
Division 1 Strategic development plans
s. 95
financial requirements, capital expenditure and personnel
requirements.
(3) A strategic development plan is to cover a forecast period of
5 years or a lesser period agreed with the Minister.
5 (4) The regulations may make provision, not inconsistent with this
section, for and in relation to the form and content of strategic
development plans.
(5) The regulations may also make special provision --
(a) for and in relation to the content of strategic
10 development plans for the Electricity Networks
Corporation; and
(b) for the Minister administering the Electricity Industry
Act 2003 to be consulted on the content of those plans,
so far as they apply to the performance of that corporation's
15 functions under section 44(b).
(6) Regulations are not to be made for subsections (4) and (5)
except on the Treasurer's recommendation.
95. Strategic development plan to be agreed if possible
The board of a corporation and the Minister must endeavour --
20 (a) to reach agreement on the draft strategic development
plan as soon as possible, and in any event not later than
the start of the next financial year; and
(b) to reach such agreement at the same time as they reach
agreement on the draft statement of corporate intent
25 under section 104.
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Electricity Corporations Bill 2003
Provisions about accountability Part 5
Strategic development plans Division 1
s. 96
96. Minister's powers in relation to draft strategic development
plan
(1) The Minister may return the draft strategic development plan to
a board and request it to --
5 (a) consider or further consider any matter and deal with the
matter in the draft plan; and
(b) revise the draft plan in the light of its consideration or
further consideration.
(2) The board must comply with the request as soon as is
10 practicable.
(3) If a board and the Minister have not reached agreement on a
draft strategic development plan by one month before the start
of the next financial year, the Minister may, by written notice,
direct the board --
15 (a) to take specified steps in relation to the draft plan; or
(b) to make specified modifications to the draft plan.
(4) The board must comply with a direction under subsection (3) as
soon as is practicable.
(5) The Minister must within 14 days after a direction is given
20 cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 137.
97. Strategic development plan pending agreement
(1) In subsection (3) --
"latest draft plan" means the draft strategic development plan
25 submitted, or last submitted, by the board concerned to the
Minister before the start of the financial year with any
modifications made by the board, whether before or after
that time, at the direction of the Minister.
(2) This section applies if the board of a corporation and the
30 Minister have not reached agreement on a draft strategic
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Electricity Corporations Bill 2003
Part 5 Provisions about accountability
Division 1 Strategic development plans
s. 98
development plan for the corporation and any subsidiary before
the start of a financial year.
(3) The latest draft plan is to be the strategic development plan for
the corporation and any subsidiary until a draft strategic
5 development plan is agreed to under section 98.
98. Minister's agreement to draft strategic development plan
When the board of a corporation and the Minister have reached
agreement on a draft strategic development plan for the
corporation and any subsidiary, it becomes the strategic
10 development plan for the corporation and any subsidiary for the
relevant financial year or the remainder of the year, as the case
may be.
99. Modifications of strategic development plan
(1) A strategic development plan may be modified by a board with
15 the agreement of the Minister.
(2) The Minister may, by written notice, direct a board to modify
the strategic development plan.
(3) Before giving a direction to a board under subsection (2) the
Minister must consult with the board and take its views into
20 account.
(4) The Minister must within 14 days after a direction is given
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 137.
100. Concurrence of Treasurer
25 The Minister is not to --
(a) agree to a draft strategic development plan under
section 98; or
page 54
Electricity Corporations Bill 2003
Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 101
(b) agree to or direct any modification of a strategic
development plan under section 99,
except with the concurrence of the Treasurer.
Division 2 -- Statement of corporate intent
5 101. Draft statement of corporate intent to be submitted to
Minister
(1) The board of a corporation must in each year prepare, and
submit to the Minister for his or her agreement, a draft
statement of corporate intent for the corporation and any
10 subsidiary.
(2) The Minister may from time to time, with the concurrence of
the Treasurer, by notice in writing to a corporation --
(a) fix a day in each year by which a draft statement of
corporate intent is to be submitted under subsection (1);
15 or
(b) cancel a notice given under paragraph (a).
(3) Each draft statement of corporate intent is to be submitted not
later than --
(a) the day fixed under subsection (2); or
20 (b) if there is for the time being no day so fixed, 2 months
before the start of the next financial year.
102. Transitional provision
The first statement of corporate intent of a corporation is to be
in respect of the next full financial year after the
25 commencement of this Act.
page 55
Electricity Corporations Bill 2003
Part 5 Provisions about accountability
Division 2 Statement of corporate intent
s. 103
103. Matters to be included in statement of corporate intent
(1) In subsection (3) --
"community service obligations" means obligations to
perform functions that it is not in the commercial interests
5 of the corporation concerned to perform.
(2) The statement of corporate intent of a corporation must be
consistent with the strategic development plan under Division 1
for the corporation and any subsidiary.
(3) The statement of corporate intent for a corporation and any
10 subsidiary must specify --
(a) the performance targets and other measures by which
performances may be judged in relation to objectives for
the relevant financial year;
(b) an outline of objectives;
15 (c) an outline of the nature and scope of the functions
proposed to be performed during the relevant financial
year;
(d) an outline of main undertakings during the relevant
financial year;
20 (e) the dividend policy for the relevant financial year;
(f) accounting policies that apply to the preparation of
accounts;
(g) the type of information to be given to the Minister,
including information to be given in quarterly and
25 annual reports;
(h) the nature and extent of community service obligations
that are to be performed;
(i) the costings of, funding for, or other arrangements to
make adjustments relating to, community service
30 obligations;
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Electricity Corporations Bill 2003
Provisions about accountability Part 5
Statement of corporate intent Division 2
s. 104
(j) the ways in which, and the extent to which,
compensation will be made for performing community
service obligations; and
(k) such other matters as may be agreed on by the Minister
5 and the board.
(4) The Minister may exempt a corporation from including any
matter, or any aspect of a matter, mentioned in subsection (3) in
its statement of corporate intent.
(5) The regulations may make provision, not inconsistent with this
10 section, for and in relation to the form and content of statements
of corporate intent.
(6) The regulations may also make special provision --
(a) for and in relation to the content of statements of
corporate intent for the Electricity Networks
15 Corporation; and
(b) for the Minister administering the Electricity Industry
Act 2003 to be consulted on the content of those
statements,
so far as they apply to the performance of the corporation's
20 functions under section 44(b).
(7) Regulations are not to be made for subsections (5) and (6)
except on the Treasurer's recommendation.
104. Statement of corporate intent to be agreed if possible
The board of a corporation and the Minister must endeavour --
25 (a) to reach agreement on the draft statement as soon as
possible and, in any event not later than the start of the
next financial year; and
(b) to reach such agreement in accordance with
section 95(b).
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Division 2 Statement of corporate intent
s. 105
105. Minister's powers in relation to draft statement of corporate
intent
(1) The Minister may return the draft statement of corporate intent
to a board and request it to --
5 (a) consider or further consider any matter and deal with the
matter in the draft statement; and
(b) revise the draft statement in the light of its consideration
or further consideration.
(2) The board must comply with the request as soon as is
10 practicable.
(3) If a board and the Minister have not reached agreement on a
draft statement of corporate intent by one month before the start
of the financial year, the Minister may, by written notice, direct
the board --
15 (a) to take specified steps in relation to the draft statement;
or
(b) to make specified modifications to the draft statement.
(4) The board must comply with a direction under subsection (3) as
soon as is practicable.
20 (5) The Minister must within 14 days after a direction is given
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 137.
106. Statement of corporate intent pending agreement
(1) In subsection (3) --
25 "latest draft statement" means the draft statement of corporate
intent submitted, or last submitted, by the board concerned
to the Minister before the start of the financial year with
any modifications made by the board, whether before or
after that time, at the direction of the Minister.
30 (2) This section applies if the board of a corporation and the
Minister have not reached agreement on a draft statement of
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Statement of corporate intent Division 2
s. 107
corporate intent for the corporation and any subsidiary before
the start of a financial year.
(3) The latest draft statement is to be the statement of corporate
intent for the corporation and any subsidiary until a draft
5 statement of corporate intent is agreed to under section 107.
107. Minister's agreement to draft statement of corporate intent
(1) When the board of a corporation and the Minister have reached
agreement on a draft statement of corporate intent for the
corporation and any subsidiary, it becomes the statement of
10 corporate intent for the relevant financial year or the remainder
of the year as the case may be.
(2) The Minister must within 14 days after agreeing to a draft
statement of corporate intent under subsection (1) cause a copy
of it to be laid before each House of Parliament or dealt with in
15 accordance with section 137.
(3) A board may request the Minister to delete from the copy of a
statement of corporate intent that is to be laid before Parliament
a matter that is of a commercially sensitive nature, and the
Minister may, despite subsection (2), comply with the request.
20 (4) Any copy of a statement of corporate intent to which
subsection (3) applies must --
(a) contain a statement detailing the reasons for the deletion
at the place in the document where the information
deleted would otherwise appear; and
25 (b) be accompanied by an opinion from the Auditor General
stating whether or not the information deleted is
commercially sensitive.
108. Modifications of statement of corporate intent
(1) A statement of corporate intent may be modified by a board
30 with the agreement of the Minister.
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Division 3 Quarterly and annual reports
s. 109
(2) The Minister may, by written notice, direct a board to modify
the statement of corporate intent, and the board must comply
with any such direction.
(3) Before giving a direction to a board under subsection (2), the
5 Minister must consult with the board and take its views into
account.
(4) The Minister must within 14 days after a direction is given
cause a copy of it to be laid before each House of Parliament or
dealt with in accordance with section 137.
10 109. Concurrence of Treasurer
The Minister is not to --
(a) agree to a draft statement of corporate intent under
section 107; or
(b) agree to or direct any modification of a statement of
15 corporate intent under section 108,
except with the concurrence of the Treasurer.
Division 3 -- Quarterly and annual reports
110. Quarterly reports
(1) A corporation must, for each of the first 3 quarters of a financial
20 year, give to the Minister a separate report on the operations of
the corporation and of each subsidiary.
(2) A quarterly report is to be prepared by a corporation --
(a) on a consolidated basis; and
(b) for any segment of the corporation prescribed by
25 regulations made for the purposes of section 64.
(3) A quarterly report must be given to the Minister --
(a) within one month after the end of the quarter; or
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s. 111
(b) if another period after the end of the quarter is agreed
between the Minister and the board concerned, within
the agreed period.
(4) A corporation must give a copy of each quarterly report to the
5 Treasurer.
(5) A quarterly report must --
(a) include the information required to be given in the
report by a relevant statement of corporate intent under
Division 2; and
10 (b) comply with regulations made for the purposes of
section 64.
(6) Subject to section 113, the Minister shall, after consultation with
the board concerned, make a quarterly report available to the
public.
15 111. Annual reports
(1) A corporation must prepare and deliver to the Minister in each
year a separate annual report on the operations of each of --
(a) the corporation, which is to be done --
(i) on a consolidated basis and in accordance with
20 Schedule 5 clauses 32 and 33; and
(ii) for any segment of the corporation prescribed by
regulations made for the purposes of section 64;
and
(b) any subsidiary, which is to be done in accordance with
25 Schedule 5 clauses 32 and 33.
(2) All of the reports under subsection (1) are to be sent to the
Minister at the same time.
(3) The Minister must within 21 days after the day on which a copy
of an annual report of a corporation is delivered to the Minister
30 cause a copy of the report to be laid before each House of
Parliament or dealt with in accordance with section 137.
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Division 3 Quarterly and annual reports
s. 112
(4) An annual report on the operations of a subsidiary is not
required to be laid before Parliament or dealt with under
section 137.
112. Contents of annual reports
5 (1) The annual report in respect of a corporation or a subsidiary
must --
(a) contain such information as is required to be included in
the report by the Minister to enable an informed
assessment to be made of the operations of the
10 corporation or the subsidiary;
(b) include a comparison of the performance of the
corporation or the subsidiary with any relevant
statement of corporate intent;
(c) comply with regulations made for the purposes of
15 section 64;
(d) include particulars of any directions given by the
Minister under section 96(3), 99(2), 105(3), 108(2),
115(1), 122(4) or 129(3) --
(i) that apply to the corporation or the subsidiary;
20 and
(ii) were given during the relevant financial year, or
at any other time to the extent that they
continued to be material during that year;
and
25 (e) include particulars of the impact on the financial
position, profits and losses and prospects of the
corporation or the subsidiary of any modifications to --
(i) the statement of corporate intent; and
(ii) any directions given by the Minister under
30 section 115(1),
that were given during the relevant financial year.
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Ministerial directions, general provisions Division 4
s. 113
(2) The annual report in respect of a corporation must also include a
summary of the report referred to in section 33.
(3) The requirements of this section are in addition to Schedule 5
clauses 32 and 33.
5 113. Deletion of commercially sensitive matters from reports
(1) The board of a corporation may request the Minister to delete a
matter that is of a commercially sensitive nature from the copies
of a quarterly or annual report (and accompanying documents)
relating to the corporation that are to be made public.
10 (2) The Minister may, despite section 112, comply with a request
under subsection (1).
(3) If the Minister complies with a request under subsection (1) the
copies of the report are to include a statement that a matter has
been deleted from it under this section.
15 Division 4 -- Ministerial directions, general provisions
114. Directions to corporation
Except as provided by this Act or any other written law, a
corporation is not required to comply with any direction or
administrative request given or made by or on behalf of the
20 Government.
115. Minister may give directions
(1) The Minister may give directions in writing to a corporation
with respect to the performance of its functions, either generally
or in relation to a particular matter, and, subject to section 116,
25 the corporation is to give effect to any such direction.
(2) Despite subsection (1), the Minister cannot give a direction to
the Electricity Networks Corporation with respect to the
exercise or performance of any power or duty of that
corporation under Part 9 of the Electricity Industry Act 2003 or
30 regulations or market rules made under that Part.
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Division 4 Ministerial directions, general provisions
s. 116
(3) The Minister must cause the text of any direction under
subsection (1) to be laid before each House of Parliament or
dealt with under section 137 --
(a) within 14 days after the direction is given; or
5 (b) if the direction is the subject of a notification under
section 116, within 14 days after it is confirmed under
that section.
116. Directions contrary to commercial interest
(1) Where a direction under section 115 is given to a corporation
10 and the board of the corporation determines that --
(a) it would be inconsistent with section 63(1) for the
corporation to comply with the direction; or
(b) there is some other reason why it should not so comply,
the board is to notify the Minister in writing within 7 days of
15 receipt of the direction of its determination and the reason for it.
(2) Where a board gives such a notice to the Minister --
(a) the Minister is to consult with the Treasurer and having
regard to those consultations the Minister is to cancel or
confirm the direction; and
20 (b) the corporation is not required to give effect to the
direction unless it is so confirmed.
117. When directions take effect
(1) A direction under section 115 becomes effective --
(a) on the expiry of 7 days after its receipt by the board
25 concerned or of such longer period as the Minister may,
at the request of the board, determine; or
(b) if it is the subject of a notice under section 116(1), on its
being confirmed under section 116(2).
(2) If the board asks the Minister to extend the 7 day period under
30 subsection (1), the Minister must consider the request and notify
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Consultation and provision of information Division 5
s. 118
the board of his or her decision before the 7 day period has
expired.
Division 5 -- Consultation and provision of information
118. Consultation
5 The board of a corporation and the Minister, at the request of
either, are to consult together, either personally or through
appropriate representatives, in relation to any aspect of the
operation of the corporation.
119. Minister to have access to information
10 (1) In this section --
"document" includes any tape, disk or other device or medium
on which information is recorded or stored mechanically,
photographically, electronically or otherwise;
"information" means information specified, or of a description
15 specified, by the Minister that relates to the functions of the
corporation.
(2) The Minister is entitled --
(a) to have information in the possession of a corporation
and any subsidiary; and
20 (b) where the information is in or on a document, to have,
and make and retain copies of, that document.
(3) For the purposes of subsection (2) the Minister may --
(a) request the chief executive officer or the board of a
corporation to furnish information to the Minister;
25 (b) request the chief executive officer or the board of a
corporation to give the Minister access to information;
(c) for the purposes of paragraph (b) make use of the staff
of a corporation and any subsidiary to obtain the
information and furnish it to the Minister.
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Division 5 Consultation and provision of information
s. 120
(4) A request under subsection (3)(a) may specify a time before
which the information is to be furnished.
(5) The chief executive officer or the board of a corporation is
to --
5 (a) comply with a request under subsection (3); and
(b) make staff and facilities available to the Minister for the
purposes of subsection (3)(c).
(6) Where the chief executive officer or the board of a corporation
furnishes or gives access to information to the Minister the
10 Minister is to be advised whether or not in the opinion of the
chief executive officer or the board the public disclosure of the
information would adversely affect the commercial interests of
the corporation or any subsidiary.
120. Provision of information in compiled form
15 (1) Subsection (2) applies if the Minister wishes to obtain from a
corporation information that --
(a) is not itself in the possession of the corporation or a
subsidiary; but
(b) is capable of being assembled or compiled from
20 information in the possession of the corporation or a
subsidiary.
(2) The Minister may request the chief executive officer or the
board of the corporation to furnish to the Minister a document
containing information that --
25 (a) is of a specified description;
(b) is presented in a specified way;
(c) relates to a specified period; or
(d) has some other specified characteristic,
or that comes within 2 or more of paragraphs (a) to (d).
30 (3) A request under subsection (2) may specify a time before which
the document is to be furnished.
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Consultation and provision of information Division 5
s. 121
(4) The chief executive officer or the board of a corporation is to
comply with a request under subsection (2) and is to take, or
cause to be taken, whatever steps are necessary in order to do
so.
5 (5) Section 119(2) applies to a document prepared or compiled for
the purposes of this section in the same way as it applies to
other information in the possession of a corporation or a
subsidiary.
(6) Section 119(6) applies where a document is furnished under this
10 section in the same way as it applies where information is
furnished under that section.
121. Minister to be kept informed
A corporation must --
(a) keep the Minister reasonably informed of the operations,
15 financial performance and financial position of the
corporation and its subsidiaries, including the assets and
liabilities, profits and losses and prospects of the
corporation and its subsidiaries;
(b) give the Minister reports and information that he or she
20 requires for the making of informed assessments of
matters mentioned in paragraph (a); and
(c) if matters arise that in the opinion of the board of the
corporation may prevent, or significantly affect,
achievement of the corporation's --
25 (i) objectives outlined in its statement of corporate
intent; or
(ii) targets under its strategic development plan,
promptly inform the Minister of the matters and its
opinion in relation to them.
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Division 5 Consultation and provision of information
s. 122
122. Notice of financial difficulty
(1) The board of a corporation must notify the Minister if the board
forms the opinion that the corporation or a subsidiary is unable
to, or will be unlikely to be able to, satisfy any financial
5 obligation, of the corporation or the subsidiary from the
financial resources available or likely to be available to the
corporation or the subsidiary at the time the financial obligation
is due.
(2) The notice must --
10 (a) be in writing;
(b) provide the reasons for the board's opinion; and
(c) provide such other information as the board considers
relevant.
(3) Within 7 days of receipt of the notice, the Minister must --
15 (a) confer with the Treasurer and the board for the purpose
of determining what action is required to ensure that the
corporation or subsidiary is able to satisfy the relevant
financial obligation when it is due; and
(b) initiate such action as is required to ensure that the
20 corporation or subsidiary is able to satisfy the relevant
financial obligation when it is due.
(4) For the purposes of subsection (3) the Minister may give
directions to a corporation including a direction requiring the
corporation or any subsidiary to cease or limit the performance
25 of any function.
(5) The board of a corporation must give effect to any such
direction and must ensure that it is complied with in relation to
any relevant subsidiary.
(6) The Minister must within 14 days after a direction has been
30 given under subsection (4) cause a copy of it to be laid before
each House of Parliament or dealt with in accordance with
section 137.
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Protection from liability Division 6
s. 123
Division 6 -- Protection from liability
123. No liability for certain acts or omissions
(1) A corporation, a subsidiary of a corporation or a person
performing functions under this Act is not liable --
5 (a) in respect of any claim arising as a consequence of the
disclosure of information or documents under --
(i) section 110, 111, 118, 119, 120, 121 or 122;
(ii) Schedule 4 clause 3 or 5; or
(iii) Schedule 5 clause 4 or 6 or Schedule 6 clause 4
10 or 6 to the Electricity Transmission and
Distribution Systems (Access) Act 1994;
or
(b) for the fact of having done or omitted anything that is
required to be done or omitted by a direction given
15 under section 96(3), 99(2), 105(3), 108(2), 115(1),
122(4) or 129(3).
(2) Subsection (1) does not extend to the manner in which any thing
is done or omitted if it is done or omitted contrary to Schedule 2
clause 2 or 3.
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Part 6 Financial provisions
Division 1 General
s. 124
Part 6 -- Financial provisions
Division 1 -- General
124. Bank account
(1) A corporation may have an account or accounts at any bank or
5 banks, and money received by and expenditure of the
corporation is to be paid to or from such an account.
(2) In subsection (1) --
"bank" has the meaning given by section 3(1) of the Financial
Administration and Audit Act 1985.
10 125. Investment
Funds of a corporation that are not being used for the
performance of the corporation's functions may be invested in
such investments as the board of the corporation determines.
126. Exemption from rates
15 Land is not rateable land for the purposes of the Local
Government Act 1995 if it is --
(a) vested in, or under the management and control of, a
corporation; and
(b) used or reserved exclusively for the purpose of
20 providing works, undertakings or facilities necessary to
the performance of the functions of the corporation.
Division 2 -- Payments to State
127. Payment of amount in lieu of rates
A corporation is to pay to the Treasurer in respect of a financial
25 year a sum equal to the amount of any local government rate or
charge that, apart from section 126, the corporation would have
been liable to pay in respect of that financial year.
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Payments to State Division 2
s. 128
128. Determination of amounts under section 127
Amounts payable under section 127 --
(a) are to be determined in accordance with such principles;
and
5 (b) are to be paid at such time or times,
as the Treasurer may direct.
129. Dividend
(1) A dividend under this section is to be --
(a) calculated with respect to the profits of a corporation
10 after first taking into account any amounts payable to
the Treasurer by the corporation under --
(i) section 127; and
(ii) the State Enterprises (Commonwealth Tax
Equivalents) Act 1996;
15 and
(b) paid to the Treasurer, in accordance with subsection (5).
(2) The board of a corporation, as soon as practicable after the end
of each financial year, is to make a recommendation to the
Minister as to the amount of the dividend (if any) that the board
20 recommends as appropriate to be paid by the corporation in
respect of that financial year.
(3) The Minister, with the concurrence of the Treasurer --
(a) may accept a recommendation under subsection (2); or
(b) after consultation with the board, is to direct that some
25 other amount is to be paid.
(4) The Minister is to cause the text of any direction given under
subsection (3) to be laid before each House of Parliament within
14 days after the direction is given or dealt with in accordance
with section 137.
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Division 3 Borrowing
s. 130
(5) A corporation is to pay any dividend --
(a) as soon as is practicable after the amount is fixed under
subsection (3); and
(b) in any case not later than --
5 (i) 6 months after the end of the financial year to
which the dividend relates; or
(ii) such other time as may be agreed between the
Treasurer and the board.
Division 3 -- Borrowing
10 130. Borrowing
(1) In subsection (2)(c) --
"debt paper" means inscribed stock, bonds, debentures with
coupons annexed, bills of exchange, promissory notes or
bearer securities, or other similar instruments evidencing
15 indebtedness.
(2) A corporation may, subject to section 131 --
(a) borrow or re-borrow moneys;
(b) obtain credit;
(c) issue, acquire, hold or dispose of debt paper;
20 (d) create and issue capital instruments; or
(e) otherwise arrange for financial accommodation to be
extended to the corporation.
(3) Capital instruments created and issued by a corporation under
subsection (2)(d) --
25 (a) may be described in any way determined by the
corporation; and
(b) are to be created and issued on such terms as the
corporation determines and the Treasurer approves.
(4) A corporation is to keep such registers for the purposes of this
30 section as may be prescribed.
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Borrowing Division 3
s. 131
131. Borrowing limits
(1) The Treasurer may, in accordance with subsections (2), (3) and
(4), by notice to a corporation, impose monetary limits on the
exercise by the corporation of the powers conferred by
5 section 130.
(2) The monetary limit in respect of a corporation is to be
determined for the exercise of those powers in the financial year
following the commencement of this Act.
(3) That limit in respect of a corporation may be varied for any
10 subsequent financial year and any limit for the time being in
force may also be varied for a subsequent financial year.
(4) A limit for the time being in force in respect of a corporation
continues to apply until it is so varied.
(5) A corporation must comply with any limit for the time being in
15 force in respect of it.
(6) A liability of a corporation is not unenforceable or in any way
affected by a failure of the corporation to comply with this
section.
(7) No person dealing with a corporation is bound or concerned to
20 enquire whether the corporation has complied or is complying
with this section.
132. Hedging transactions
(1) A corporation may in connection with the exercise of any power
conferred by section 130 --
25 (a) enter into an agreement or arrangement to effect any of
the following transactions --
(i) a foreign exchange transaction;
(ii) a forward foreign exchange transaction;
(iii) a currency swap;
30 (iv) a forward currency swap;
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Part 6 Financial provisions
Division 4 Guarantees
s. 133
(v) a foreign currency cap, a foreign currency collar
or a foreign currency floor;
(vi) a forward interest rate agreement;
(vii) an interest rate swap;
5 (viii) a forward interest rate swap;
(ix) an interest rate cap, an interest rate collar or an
interest rate floor;
(x) an option for interest rate or currency
management purposes;
10 (xi) a futures contract or a futures option;
(xii) a transaction of such other class as is approved in
writing by the Treasurer as a class of transactions
to which this paragraph applies;
or
15 (b) enter into an agreement or arrangement to effect any
transaction which is a combination of --
(i) 2 or more transactions permitted under
paragraph (a); or
(ii) one or more transactions permitted under
20 paragraph (a) and one or more transactions
permitted under section 130.
(2) In subsection (1)(a) --
"interest rate" includes coupon rate, discount rate and yield.
Division 4 -- Guarantees
25 133. Guarantees
(1) The Treasurer may with the concurrence of the Minister, in the
name and on behalf of the Crown, guarantee the performance by
a corporation, in the State or elsewhere, of any financial
obligation of the corporation --
30 (a) arising under section 130; or
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Financial administration and audit Division 5
s. 134
(b) to which it becomes subject under Part 3 of the
Electricity Legislation (Amendments and Transitional
Provisions) Act 2003.
(2) A guarantee is to be in such form and subject to such terms and
5 conditions as the Treasurer determines.
(3) The due payment of moneys payable by the Treasurer under a
guarantee --
(a) is by this subsection guaranteed by the State; and
(b) is to be made by the Treasurer and charged to the
10 Consolidated Fund, and this subsection appropriates that
Fund accordingly.
(4) The Treasurer is to cause any amounts received or recovered
from a corporation or otherwise in respect of any payment made
by the Treasurer under a guarantee to be paid into the
15 Consolidated Fund.
134. Charges for guarantee
(1) The Treasurer may, after consultation with the board of a
corporation, fix charges to be paid by the corporation to the
Treasurer for the benefit of the Consolidated Fund in respect of
20 a guarantee given under section 133.
(2) Payments by a corporation to the Treasurer in respect of any
charges under subsection (1) are required to be made at such
times, and in such instalments, as the Treasurer determines.
Division 5 -- Financial administration and audit
25 135. Limited application of Financial Administration and Audit
Act 1985
Despite anything in the Financial Administration and Audit
Act 1985 that Act, other than the provisions referred to in
Schedule 5 clauses 34(2) and 35(2), does not apply to a
30 corporation or any person performing functions under this Act.
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Division 5 Financial administration and audit
s. 136
136. Financial administration and audit
(1) Schedule 5 has effect in relation to the financial administration
and audit of a corporation.
(2) Schedule 5 may be amended by regulations made by the
5 Governor in accordance with subsections (3) and (4).
(3) If --
(a) a provision of Schedule 5 that sets out the substance of a
provision of the Corporations Act, does not accurately
reflect the corresponding provision of the Corporations
10 Act as in force for the time being;
(b) the Corporations Act as in force for the time being does
not contain a provision that corresponds to a provision
of Schedule 5 that sets out the substance of a provision
of the Corporations Act; or
15 (c) the Corporations Act as in force for the time being
contains a provision relating to a matter provided for by
Schedule 5, the substance of which is not set out in
Schedule 5,
the Minister may recommend to the Governor, as soon as
20 practicable after the circumstance in paragraph (a), (b) or (c)
arises, that regulations be made under subsection (2).
(4) The regulations are to be in such form that Schedule 5 as
amended will, in the opinion of the Minister, be substantially
the same as the corresponding provisions of the Corporations
25 Act, but with such modifications as are consistent with the
policy of this Act.
(5) If because of the amendment of Schedule 5 by regulations
under subsection (2) it is necessary or expedient to --
(a) delete or alter a reference in this Act to a provision of
30 Schedule 5;
(b) include in this Act a reference to a provision of
Schedule 5; or
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Financial administration and audit Division 5
s. 136
(c) make some other consequential modification to this Act,
the regulations may amend this Act for the purpose of deleting,
altering or including the reference or making the modification.
(6) Regulations are not to be made under subsection (2) except with
5 the Treasurer's concurrence.
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Electricity Corporations Bill 2003
Part 7 Miscellaneous
s. 137
Part 7 -- Miscellaneous
137. Supplementary provision for laying document before
Parliament
(1) If --
5 (a) at the commencement of a period referred to in
section 40(4), 50(6), 71(4), 96(5), 99(4), 105(5), 107(2),
108(4), 111(3), 115(3), 122(6), 129(4) or Schedule 2
clause 13(7) in respect of a document a House of
Parliament is not sitting; and
10 (b) the Minister is of the opinion that that House will not sit
during that period,
the Minister is to transmit a copy of the document to the Clerk
of that House.
(2) A copy of a document transmitted to the Clerk of a House is to
15 be taken to have been laid before that House.
(3) The laying of a copy of a document that is taken to have
occurred under subsection (2) is to be recorded in the Minutes,
or Votes and Proceedings, of the House on the first sitting day
of the House after the receipt of the copy by the Clerk.
20 138. Execution of documents
(1) A corporation is to have a common seal.
(2) A document is duly executed by a corporation if --
(a) the common seal of the corporation is affixed to it in the
presence of 2 directors or of a director and an executive
25 officer; or
(b) it is signed on behalf of the corporation by a person or
persons referred to in subsection (4).
(3) The common seal of a corporation is not to be affixed to a
document except in accordance with this section.
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Miscellaneous Part 7
s. 139
(4) A corporation may, by writing under its common seal, authorise
a director or a member of staff or other agent of the corporation
to execute documents on its behalf.
(5) An authority under subsection (4) --
5 (a) may be given --
(i) either generally or in respect of a specified
matter or specified matters; and
(ii) so as to authorise 2 or more persons to execute
documents jointly;
10 and
(b) may be presumed by a person dealing with a corporation
to continue --
(i) during any period for which it is conferred; or
(ii) if subparagraph (i) does not apply, until notice of
15 termination of the authority is given to the person
so dealing.
(6) A document purporting to be executed in accordance with this
section is to be taken to be duly executed until the contrary is
shown.
20 139. Contract formalities
(1) In so far as the formalities of making, varying or discharging a
contract are concerned, a person acting under the authority of a
corporation may make, vary or discharge a contract in the name
of or on behalf of the corporation in the same manner as if that
25 contract were made, varied or discharged by a natural person.
(2) The making, variation or discharge of a contract in accordance
with subsection (1) is effectual in law and binds the corporation
concerned and other parties to the contract.
(3) Subsection (1) does not prevent a corporation from making,
30 varying or discharging a contract under its common seal.
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Part 7 Miscellaneous
s. 140
140. Delegation by Treasurer
(1) In subsection (2) --
"Treasury officer" means an officer of the department that
principally assists the Minister administering the Financial
5 Administration and Audit Act 1985 in the administration of
that Act.
(2) The Treasurer may delegate to a Treasury officer any power or
duty of the Treasurer under another provision of this Act.
(3) The delegation must be in writing signed by the Treasurer.
10 (4) An officer to whom a power or duty is delegated under this
section cannot delegate that power or duty.
(5) An officer exercising or performing a power or duty that has
been delegated to the officer under this section is to be taken to
do so in accordance with the terms of the delegation, unless the
15 contrary is shown.
141. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed or are
necessary or convenient to be prescribed for giving effect to the
20 purposes of this Act.
(2) If there is any conflict or inconsistency between a provision
made by regulations under this Act and a provision made by
regulations under the Electricity Act 1945, the latter prevails.
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Electricity Corporations Bill 2003
Provisions about the constitution and proceedings of boards Schedule 1
Schedule 1 -- Provisions about the constitution and
proceedings of boards
[s. 10]
1. Definition
5 In clauses 2, 3, 4 and 5(1) --
"director" does not, if the chief executive officer is a director,
include him or her in that capacity.
2. Term of office
(1) Subject to clause 3, a director holds office for such period, not
10 exceeding 3 years, as is specified in the instrument of appointment,
and is eligible for reappointment.
(2) Periods of appointment are to be fixed in a way that results in
approximately one-third of the directors retiring each year.
(3) A director, unless he or she sooner resigns or is removed from office,
15 continues in office until his or her successor comes into office, even if
the period for which the director was appointed has expired.
(4) A director's duties are not required to be performed on a full-time
basis.
3. Resignation and removal
20 (1) A director may resign from office by notice in writing delivered to the
Minister.
(2) The Governor may at any time remove a director from office and is
not required to give any reason for doing so.
4. Chairperson and deputy chairperson
25 (1) The Governor is to appoint a director to be chairperson and another to
be deputy chairperson, appointments in each case being made on the
nomination of the Minister.
(2) The chief executive officer, if he or she is a director, is not eligible for
appointment under subclause (1).
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Schedule 1 Provisions about the constitution and proceedings of boards
(3) Where the chairperson is unable to act because of sickness, accident
or other cause, the deputy chairperson is to act in the chairperson's
place.
(4) Where the deputy chairperson is acting in place of the chairperson at a
5 meeting, clause 5(1) applies as if the deputy chairperson were absent
from the meeting.
5. Alternate directors
(1) The Minister may in writing appoint a person to act temporarily in
place of a director who is unable to act because of sickness, absence
10 or other cause.
(2) A person appointed under subclause (1), while acting according to the
tenor of the appointment --
(a) is to be taken to be a director; and
(b) is entitled to remuneration under section 11.
15 (3) Where the chief executive officer of a corporation is a director he or
she may, in writing delivered to the chairperson of the board of the
corporation or the person presiding at a meeting of the board, appoint
a senior officer of the corporation to represent him or her at a meeting
if --
20 (a) he or she is unable to attend by reason of sickness, absence or
other cause; and
(b) the senior officer is a person who has been approved by the
board for the purposes of this subclause.
(4) While attending a meeting by virtue of such a nomination the officer
25 is to be taken to be a director.
(5) Subclause (3) does not apply if there is a person acting in place of the
chief executive officer under section 17.
(6) No act or omission of a person acting in place of another under this
clause may be questioned on the ground that the occasion for the
30 appointment or acting had not arisen or had ceased.
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Provisions about the constitution and proceedings of boards Schedule 1
6. Meetings
(1) The first meeting of a board is to be convened by the chairperson and,
subject to subclause (2), subsequent meetings are to be held at such
times and places as the board determines.
5 (2) A special meeting of a board may at any time be convened by the
chairperson or any 2 directors.
(3) The chairperson, or the deputy chairperson acting under clause 4(3), is
to preside at all meetings of a board at or in which he or she is
present, or participating under clause 7.
10 (4) If both the chairperson and the deputy chairperson are not present or
participating, the directors present or participating are to appoint a
director to preside.
(5) At any meeting of a board --
(a) 3 directors constitute a quorum; and
15 (b) in the case of an equality of votes the person presiding has a
casting vote in addition to a deliberative vote.
7. Telephone and video meetings
Despite anything in this Schedule, a communication between directors
constituting a quorum under clause 6(5)(a) by telephone or
20 audiovisual means is a valid meeting of directors, but only if each
participating director is capable of communicating with every other
participating director instantaneously at all times during the
proceedings.
8. Resolution may be passed without meeting
25 (1) If --
(a) a document containing a statement to the effect that an act,
matter or thing has been done or a resolution has been passed
is sent or given to all directors of a corporation;
(b) the document is assented to by a majority of the directors who
30 signify a response; and
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Schedule 1 Provisions about the constitution and proceedings of boards
(c) that majority comprises not less than 3 directors,
that act, matter, thing or resolution is to be taken as having been done
at or passed by a meeting of the board of the corporation.
(2) For the purposes of subclause (1) --
5 (a) the meeting is to be taken as having been held --
(i) if the directors assented to the document on the same
day, on the day on which the document was assented
to and at the time at which the document was last
assented to by a director; or
10 (ii) if the directors assented to the document on different
days, on the day on which, and at the time at which,
the document was last assented to by a director;
(b) 2 or more separate documents in identical terms each of
which is assented to by one or more directors are to be taken
15 to constitute one document; and
(c) a director may signify assent to a document --
(i) by signing the document; or
(ii) by notifying the corporation of the director's assent in
person or by post, facsimile transmission, telephone,
20 email or other method of written, electronic, audio or
audiovisual communication.
(3) Where a director signifies assent to a document otherwise than by
signing the document, the director must by way of confirmation sign
the document at the next meeting of the board attended by that
25 director, but failure to do so does not invalidate the act, matter, thing
or resolution to which the document relates.
(4) Where a document is assented to in accordance with subclause (1), the
document is to be taken as a minute of a meeting of the board.
9. Minutes and records
30 A board is to ensure that an accurate record is kept and preserved
of --
(a) the proceedings at each meeting of the board; and
(b) each resolution passed under clause 8.
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Provisions about the constitution and proceedings of boards Schedule 1
10. Leave of absence
A board may, on such terms and conditions as it thinks fit, grant to a
director leave of absence from a meeting, including the meeting at
which it is intended to grant the leave.
5 11. Board to determine own procedures
Subject to this Act, a board may determine its own procedures.
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Electricity Corporations Bill 2003
Schedule 2 Provisions about the duties of directors and related provisions
Schedule 2 -- Provisions about the duties of directors
and related provisions
[s. 27]
Division 1 -- Preliminary
5 1. Interpretation
(1) In this Schedule --
"summary conviction penalty", in relation to a crime, has the same
meaning as in section 5 of The Criminal Code.
(2) A person who attempts (within the meaning in section 4 of The
10 Criminal Code) to commit an offence against a provision of this
Schedule is guilty of that offence.
Division 2 -- Certain duties stated
2. Duty to act honestly
(1) A director of a corporation must at all times act honestly in the
15 performance of the functions of his or her office, whether within or
outside the State.
(2) A person who contravenes subclause (1) --
(a) with intent to deceive or defraud --
(i) the corporation concerned; or
20 (ii) creditors of that corporation or of any other person;
or
(b) for any other fraudulent purpose,
commits a crime and is liable to a fine of $20 000 or imprisonment for
5 years, or both.
25 Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
(3) If subclause (2) does not apply, a person who contravenes
subclause (1) commits an offence and is liable to a fine of $5 000.
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3. Duty to exercise reasonable care and diligence
A director of a corporation must at all times exercise the degree of
care and diligence in the performance of his or her functions, whether
within or outside the State, that a reasonable person in that position
5 would reasonably be expected to exercise in the corporation's
circumstances.
Penalty: $5 000.
4. Duty not to make improper use of information
(1) A director of a corporation or a former director must not, whether
10 within or outside the State, make improper use of information
acquired by virtue of his or her position as such --
(a) to gain, directly or indirectly, an advantage --
(i) for himself or herself; or
(ii) for any other person;
15 or
(b) to cause detriment to the corporation.
(2) A person who contravenes subclause (1) commits a crime and is liable
to a fine of $20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
20 3 years, or both.
5. Duty not to make improper use of position
(1) A director of a corporation must not, whether within or outside the
State, make improper use of his or her position as such --
(a) to gain, directly or indirectly, an advantage --
25 (i) for himself or herself; or
(ii) for any other person;
or
(b) to cause detriment to the corporation.
(2) A person who contravenes subclause (1) commits a crime and is liable
30 to a fine of $20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
3 years, or both.
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Schedule 2 Provisions about the duties of directors and related provisions
6. Fiduciary duty
(1) A director of a corporation has --
(a) the same fiduciary relationship with the corporation; and
(b) the same duties to the corporation to act with loyalty and in
5 good faith,
as a director of a company incorporated under the Corporations Act
has with and to the company.
(2) The duties referred to in subclause (1) are enforceable by the Minister
and not otherwise.
10 (3) The provisions of this clause are in addition to the other provisions of
this Schedule.
Division 3 -- Recovery from director
7. Payment of compensation may be ordered
(1) If --
15 (a) a person is convicted of an offence for a contravention of
clause 2, 3, 4 or 5; and
(b) the court is satisfied that the corporation concerned has
suffered loss or damage as a result of the act or omission that
constituted the offence,
20 the court by which the person is convicted may, in addition to
imposing a penalty, order the convicted person to pay compensation
to the corporation of such amount as the court specifies.
(2) Any such order may be enforced as if it were a judgment of the court.
8. Civil proceedings for recovery from director
25 If a person contravenes clause 2, 3, 4 or 5, the corporation concerned
may, whether or not the person has been convicted of an offence in
respect of that contravention, recover from the person as a debt due to
the corporation by action in any court of competent jurisdiction --
(a) if that person or any other person made a profit as a result of
30 the contravention, an amount equal to that profit; and
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Provisions about the duties of directors and related provisions Schedule 2
(b) if the corporation has suffered loss or damage as a result of
the contravention, an amount equal to that loss or damage.
Division 4 -- Relief from liability
9. Court may grant relief
5 Without limiting section 123, for the purposes of clause 6, 7 or 8 if it
appears to the court that a person --
(a) is, or may be, liable under that clause;
(b) has acted honestly; and
(c) ought fairly to be excused having regard to all the
10 circumstances of the case, including those connected with the
person's appointment,
the court may relieve the person either wholly or partly from liability
on such terms as the court thinks fit.
10. Application for relief
15 (1) Without limiting section 123, where a person has reason to believe
that any claim will or might be made against him or her under
clause 6, 7 or 8 the person may apply to the Supreme Court for relief.
(2) On an application under subclause (1) the Supreme Court has the
same power to relieve the person as it would have had under clause 9
20 if it had been a court exercising jurisdiction under clause 6, 7 or 8.
11. Case may be withdrawn from jury
Where a case to which clause 9 applies is being tried by judge with a
jury, the judge after hearing the evidence may, if he or she is satisfied
that the person ought under that clause to be relieved either wholly or
25 partly from liability sought to be enforced against the person --
(a) withdraw the case in whole or in part from the jury; and
(b) direct judgment to be entered for the person on such terms as
to costs or otherwise as the judge thinks proper.
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Schedule 2 Provisions about the duties of directors and related provisions
Division 5 -- Personal interests of directors, disclosure and voting
12. Disclosure
(1) In subclause (2) --
"notifiable interest" means an interest in the matter that will, under
5 clause 13(1), disqualify the director from voting on the matter at
a meeting of the board unless allowed to do so by a resolution
under clause 13(3) or a declaration under clause 13(6).
(2) A director of a corporation who has a notifiable interest in a matter
involving the corporation must, as soon as possible after the relevant
10 facts have come to the director's knowledge, disclose the nature of the
interest at a meeting of the board of the corporation.
Penalty: $5 000.
(3) A disclosure under subclause (2) is to be recorded in the minutes of
the meeting.
15 13. Voting by interested directors
(1) A director of a corporation who has a material personal interest in a
matter that is being considered by the board of the corporation --
(a) must not vote whether at a meeting or otherwise --
(i) on the matter; or
20 (ii) in relation to a proposed resolution under
subclause (3) in relation to the matter, whether in
relation to that or a different director;
and
(b) must not be present while --
25 (i) the matter; or
(ii) a proposed resolution of the kind referred to in
paragraph (a)(ii),
is being considered at a meeting.
(2) For the purpose of subclause (1), a director of a corporation does not
30 have an interest in a matter relating to an existing or proposed contract
of insurance merely because the contract insures, or would insure, the
director against a liability incurred by the director in his or her
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Provisions about the duties of directors and related provisions Schedule 2
capacity as a director of the corporation or of a subsidiary; but this
subclause does not apply if the corporation is the insurer.
(3) Subclause (1) does not apply if the board has at any time passed a
resolution that --
5 (a) specifies the director, the interest and the matter; and
(b) states that the directors voting for the resolution are satisfied
that the interest should not disqualify the director from
considering or voting on the matter.
(4) Despite Schedule 1 clause 6(5), if a director is disqualified under
10 subclause (1) in relation to a matter, a quorum is present during the
consideration of that matter if at least 2 directors are present who are
entitled to vote on any motion that may be moved at the meeting in
relation to that matter.
(5) The Minister may deal with a matter in so far as a board cannot deal
15 with it because of subclause (4).
(6) The Minister may by writing declare that subclauses (1) and (4) do
not apply in relation to a specified matter either generally or in voting
on particular resolutions.
(7) The Minister must within 14 days after a declaration under
20 subclause (6) is made cause a copy of the declaration to be laid
before each House of Parliament or to be dealt with under
section 137.
Division 6 -- Other prohibited conduct
14. Prohibition on loans to directors and related persons
25 (1) In subclause (2)(e) --
"relative" means --
(a) a parent or remoter lineal ancestor;
(b) son, daughter or remoter issue; or
(c) a brother or sister.
30 (2) A corporation must not, whether directly or indirectly --
(a) make a loan; or
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Schedule 2 Provisions about the duties of directors and related provisions
(b) give a guarantee or provide security in connection with a loan
made,
to --
(c) a director;
5 (d) a spouse or de facto partner of a director; or
(e) a relative of a director or of a spouse or de facto partner of a
director.
(3) A director of a corporation who is knowingly concerned in a
contravention of subclause (1) by the corporation (whether or not in
10 relation to the director) --
(a) with intent to deceive or defraud --
(i) the corporation concerned; or
(ii) creditors of the corporation concerned or of any other
person;
15 or
(b) for any other fraudulent purpose,
commits a crime and is liable to a fine of $20 000 or imprisonment for
5 years, or both.
Summary conviction penalty: A fine of $12 000 or imprisonment for
20 3 years, or both.
(4) If subclause (3)(a) or (b) does not apply the director commits an
offence and is liable to a fine of $5 000.
15. Directors and auditors not to be indemnified for certain matters
(1) A corporation or a subsidiary must not --
25 (a) indemnify a person who is or has been a director or auditor of
the corporation against a liability incurred by the person as a
director or auditor; or
(b) exempt such a person from such a liability.
(2) Any agreement or arrangement is void so far as it provides for a
30 corporation or a subsidiary to do anything that subclause (1) prohibits.
(3) Subclause (1) does not prevent a person from being indemnified
against a civil liability to a person, other than a corporation or a
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Provisions about the duties of directors and related provisions Schedule 2
subsidiary, unless the liability arises out of conduct involving a lack
of good faith.
(4) Subclause (1) does not prevent a person from being indemnified
against a liability for costs and expenses incurred by the person --
5 (a) in defending proceedings, whether civil or criminal, in which
judgment is given in favour of the person or in which the
person is acquitted; or
(b) in obtaining relief under clause 9 or 10.
(5) A corporation or a subsidiary must not pay, or agree to pay, a
10 premium, in respect of a contract insuring a person who is or has been
a director or auditor of the corporation against a liability --
(a) incurred by the person as such a director or auditor; and
(b) arising out of conduct involving --
(i) a wilful breach of duty in relation to the corporation;
15 or
(ii) without limiting subparagraph (i), a contravention of
clause 4 or 5.
(6) In subclause (5) --
"pay" includes pay indirectly through one or more interposed entities.
20 (7) If subclause (5) is contravened, the contract is void so far as it insured
the person against such a liability.
(8) Subclauses (5) and (7) do not apply to a liability for costs and
expenses incurred by a person in defending proceedings, whether civil
or criminal and whatever their outcome.
25 16. False or misleading information
(1) A director of a corporation must not make available or furnish
information, or authorise or permit the making available or furnishing
of information, to --
(a) the Treasurer or the Minister; or
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Schedule 2 Provisions about the duties of directors and related provisions
(b) a director, auditor, debenture holder or trustee for debenture
holders of the corporation,
being information, whether in documentary or any other form, that
relates to the affairs of the corporation and that, to the knowledge of
5 the director --
(c) is false or misleading in a material particular; or
(d) has omitted from it a matter or thing the omission of which
renders the information misleading in a material respect.
Penalty: $10 000 or imprisonment for 2 years, or both.
10 (2) A director of a corporation must not make available or furnish
information, or authorise or permit the making available or furnishing
of information, to --
(a) the Treasurer or the Minister; or
(b) a director, auditor, debenture holder or trustee for debenture
15 holders of the corporation,
being information whether in documentary or any other form, relating
to the affairs of the corporation that --
(c) is false or misleading in a material particular; or
(d) has omitted from it a matter or thing the omission of which
20 renders the information misleading in a material respect,
without having taken reasonable steps to ensure that the
information --
(e) was not false or misleading in a material particular; and
(f) did not have omitted from it a matter or thing the omission of
25 which rendered the information misleading in a material
respect.
Penalty: $5 000 or imprisonment for one year, or both.
(3) The references in subclauses (1) and (2) to a director of a
corporation --
30 (a) making available or furnishing; or
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Provisions about the duties of directors and related provisions Schedule 2
(b) authorising or permitting the making available or furnishing
of,
information relating to the affairs of the corporation include
references to a director --
5 (c) making available or furnishing; or
(d) authorising or permitting the making available or furnishing
of,
information as to the state of knowledge of that director with respect
to the affairs of the corporation.
10 (4) Where information is made available or furnished to a person referred
to in subclauses (1)(a) or (b) or (2)(a) or (b) in response to a question
asked by that person, the question and information are to be
considered together in determining whether the information was false
or misleading.
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Electricity Corporations Bill 2003
Schedule 3 Provisions to be included in constitution of subsidiary
Schedule 3 -- Provisions to be included in constitution
of subsidiary
[s. 67]
1. Disposal of shares
5 (1) A corporation is not to sell or otherwise dispose of shares in the
subsidiary other than as approved by the Minister.
(2) The Minister is empowered to execute a transfer of any shares in the
subsidiary held by the corporation.
2. Directors
10 (1) The directors of the subsidiary are to be appointed by the corporation
concerned, but no such director may be appointed except with the
prior written approval of the Minister.
(2) All decisions relating to the operation of the subsidiary are to be made
by or under the authority of the board of the subsidiary in accordance
15 with the statement of corporate intent of the corporation concerned
and the subsidiary.
(3) The board of the subsidiary is accountable to the Minister in the
manner set out in Part 5 and in the constitution of the subsidiary.
3. Further shares
20 Shares may not be issued or transferred except with the prior written
approval of the Minister.
4. Subsidiaries of subsidiary
(1) The subsidiary may not --
(a) form;
25 (b) participate in the formation of; or
(c) acquire,
any subsidiary without the prior written approval of the Minister
given with the Treasurer's concurrence.
(2) The subsidiary must ensure that the constitution of each of its
30 subsidiaries at all times complies with this Act.
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Provisions to be included in constitution of subsidiary Schedule 3
(3) The subsidiary must, to the maximum extent practicable, ensure that
each of its subsidiaries complies with its constitution and with the
requirements of this Act.
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Electricity Corporations Bill 2003
Schedule 4 Procurement of new generation
Schedule 4 -- Procurement of new generation
[s. 90]
1. Meaning of "the corporation"
In this Schedule --
5 "the corporation" --
(a) in clause 3 means the Electricity Networks Corporation;
and
(b) otherwise means the Electricity Generation Corporation.
2. Other definitions
10 In this Schedule --
"load characteristics" means the relationship between load on the
South West interconnected system and time;
"new generation" means any new or additional electricity supply or
generation;
15 "substantial new generation" means new generation which has a
capacity in megawatts equal to or greater than 3% of total
installed capacity, and which cannot be made available by
increases in the performance of the South West interconnected
system in its then current state;
20 "total installed capacity" means the total capacity in megawatts of
all electricity supply or generation connected into the South
West interconnected system, whether or not that supply or
generation is owned or controlled by a corporation established
by section 4(1).
25 3. Obligation to provide information
(1) The corporation must, not later than the prescribed day in each year,
prepare forecasts covering a minimum forecast period of 10 years and
reports, which give sufficient information to allow interested parties
to make proposals in relation to, and to participate in any procurement
30 process by the corporation for, new generation.
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Procurement of new generation Schedule 4
(2) The forecasts must deal with, but are not to be limited to, the
following matters --
(a) electricity demand on the South West interconnected system
in terms of capacity (in kilowatts) and energy (in
5 kilowatt-hours);
(b) relevant analyses of the load characteristics of the South West
interconnected system, including without limitation
reasonable load duration curves and reasonable daily load
curves;
10 (c) any potential discrepancy between electricity demand and
electricity supply on the South West interconnected system;
(d) possible solutions to remedy any such potential discrepancy.
(3) The reports must deal with, but are not to be limited to, the following
matters --
15 (a) the Electricity Retail Corporation's commitments to purchase
electricity in terms of capacity (in kilowatts) and energy (in
kilowatt-hours);
(b) the Electricity Generation Corporation's current inventories
of, and commitments to purchase, fuel for electricity
20 generation, in terms of quantities of fuel but not in terms of
the price paid or to be paid for that fuel;
(c) reasonable details of the Electricity Generation Corporation's
generating plant, including without limitation the extent of
utilisation of plant and the fuel or fuels used.
25 (4) The corporation must provide to any person copies of the forecasts
and reports, upon payment to the corporation by that person of the
prescribed fee.
(5) At the request of the Electricity Networks Corporation --
(a) the Electricity Retail Corporation is to provide it with the
30 information necessary for the preparation of reports on the
matters referred to in subclause (3)(a); and
(b) the Electricity Generation Corporation is to provide it with
the information necessary for the preparation of reports on the
matters referred to in subclause (3)(b) and (c).
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Schedule 4 Procurement of new generation
4. Obligation to conduct a competitive procurement process for
substantial new generation and to minimise electricity costs
(1) The corporation must, whenever it requires any substantial new
generation, procure that substantial new generation through a
5 non-discriminatory and open procurement process.
(2) The corporation must --
(a) whenever it procures any new generation, at all times seek to
minimise the overall cost of electricity generated by the
corporation, subject only to maintaining the reliability and
10 safety of the South West interconnected system;
(b) ensure that all proposals for new generation receive fair and
equitable consideration;
(c) ensure that, if the corporation participates as a prospective
supplier or generator in a procurement process required by
15 subclause (1), it is treated equally with all other existing or
prospective suppliers or generators and does not receive any
special treatment or benefit; and
(d) take into consideration the effect that each proposal for new
generation will have upon the utilisation and operation of the
20 South West interconnected system and upon the corporation's
existing contracts for the purchase and sale of electricity.
(3) The corporation may procure substantial new generation only with the
approval of the Minister.
5. Obligation to disclose electricity procurement process
25 The corporation must prepare and make publicly available a
description of the process to be adopted in the procurement of any
particular substantial new generation, and must provide to any person
a copy of that description upon payment to the corporation by that
person of the prescribed fee.
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Financial administration and audit Schedule 5
Schedule 5 -- Financial administration and audit
[s. 136(1)]
Division 1 -- Preliminary
1. Interpretation
5 (1) In this Schedule, unless the contrary intention appears --
"financial year" has the meaning given by clause 23(1);
"regulations" means regulations made under the Corporations Act.
(2) In this Schedule, unless the contrary intention appears, expressions
(including the expressions "accounting standard", "company" and
10 "financial records") have the meanings given to them by Part 1.2 of
the Corporations Act.
Division 2 -- Financial records
2. Obligation to keep financial records
(cf. s. 286 Corporations Act)
15 (1) A corporation must keep written financial records that --
(a) correctly record and explain its transactions and financial
position and performance; and
(b) would enable true and fair financial statements to be prepared
and audited.
20 (2) The obligation to keep financial records of transactions extends to
transactions undertaken as trustee.
(3) The financial records must be retained for 7 years after the transaction
covered by the records are completed.
3. Physical format
25 (cf. s. 288 Corporations Act)
If financial records are kept in electronic form, they must be
convertible into hard copy. Hard copy must be made available within
a reasonable time to a person who is entitled to inspect the records.
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4. Place where records are kept
(cf. s. 289 Corporations Act)
(1) A corporation may decide where to keep the financial records.
(2) If financial records about particular matters are kept outside Australia,
5 sufficient written information about those matters must be kept in
Australia to enable true and fair financial statements to be prepared.
(3) A corporation must give the Treasurer written notice of the place
where the information is kept.
(4) The Minister may direct a corporation to produce specified financial
10 records that are kept outside Australia.
(5) The direction must --
(a) be in writing;
(b) specify a place in Australia where the records are to be
produced (the place must be reasonable in the circumstances);
15 and
(c) specify a day (at least 14 days after the direction is given) by
which the records are to be produced.
5. Director access
(cf. s. 290 Corporations Act)
20 (1) A director of a corporation has a right of access to the financial
records of the corporation at all reasonable times.
(2) On application by a director, the Supreme Court may authorise a
person to inspect the financial records on the director's behalf.
(3) A person authorised to inspect records may make copies of the
25 records unless the Supreme Court orders otherwise.
(4) The Supreme Court may make any other orders it considers
appropriate, including either or both of the following --
(a) an order limiting the use that a person who inspects the
records may make of information obtained during the
30 inspection;
(b) an order limiting the right of a person who inspects the
records to make copies in accordance with subclause (3).
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Division 3 -- Financial reporting
Subdivision 1 -- Annual financial reports and directors' reports
6. Preparation of annual financial reports and directors' reports
(cf. s. 292 Corporations Act)
5 A financial report and a directors' report must be prepared for each
financial year by a corporation before 30 September.
7. Contents of annual financial report
(cf. s. 295 Corporations Act)
(1) The financial report for a financial year consists of --
10 (a) the financial statements for the year;
(b) the notes to the financial statements; and
(c) the directors' declaration about the statements and notes.
(2) The financial statements for the year are --
(a) a profit and loss statement for the year;
15 (b) a balance sheet as at the end of the year;
(c) a statement of cash flows for the year; and
(d) if required by the accounting standards -- a consolidated
profit and loss statement, balance sheet and statement of cash
flows.
20 (3) The notes to the financial statements are --
(a) disclosures required by the regulations;
(b) notes required by the accounting standards; and
(c) any other information necessary to give a true and fair view.
(4) The directors' declaration is a declaration by the directors --
25 (a) that the financial statements, and the notes referred to in
subclause (3)(b), comply with the accounting standards;
(b) that the financial statements and notes give a true and fair
view;
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Schedule 5 Financial administration and audit
(c) whether, in the directors' opinion, there are reasonable
grounds to believe that the corporation, will be able to pay its
debts as and when they become due and payable; and
(d) whether, in the directors' opinion, the financial statements
5 and notes are in accordance with this Schedule, including --
(i) clause 8 (compliance with accounting standards and
regulations); and
(ii) clause 9 (true and fair view).
(5) The declaration must --
10 (a) be made in accordance with a resolution of the directors;
(b) specify the date on which the declaration is made; and
(c) be signed by at least 2 directors.
8. Compliance with accounting standards and regulations
(cf. s. 296 Corporations Act)
15 (1) The financial report for a financial year must comply with the
accounting standards.
(2) The financial report must comply with any further requirements in the
regulations.
9. True and fair view
20 (cf. s. 297 Corporations Act)
(1) The financial statements and notes in respect of a corporation for a
financial year must give a true and fair view of --
(a) the financial position and performance of the corporation; and
(b) if consolidated financial statements are required -- the
25 financial position and performance of the consolidated entity.
(2) This clause does not affect the obligation under clause 8 for a
financial report to comply with accounting standards.
10. Annual directors' report
(cf. s. 298 Corporations Act)
30 (1) A corporation must prepare a directors' report for each financial year.
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(2) The report must include --
(a) the general information required by clause 11; and
(b) the specific information required by clause 12.
(3) The report must --
5 (a) be made in accordance with a resolution of the directors;
(b) specify the date on which the report is made; and
(c) be signed by at least 2 directors.
11. Annual directors' report -- general information
(cf. s. 299 Corporations Act)
10 (1) The directors' report in respect of a corporation for a financial year
must --
(a) contain a review of operations during the year of the
corporation and the results of those operations;
(b) give details of any significant changes in the corporation's
15 state of affairs during the year;
(c) state the corporation's principal activities during the year and
any significant changes in the nature of those activities during
the year;
(d) give details of any matter or circumstance that has arisen
20 since the end of the year that has significantly affected, or
may significantly affect --
(i) the corporation's operations in future financial years;
(ii) the results of those operations in future financial
years; or
25 (iii) the corporation's state of affairs in future financial
years;
(e) refer to likely developments in the corporation's operations in
future financial years and the expected results of those
operations; and
30 (f) if the corporation's operations are subject to any particular
and significant environmental regulation under a law of the
State or of the Commonwealth or of another State or a
Territory -- give details of the corporation's performance in
relation to environmental regulation.
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Schedule 5 Financial administration and audit
(2) If accounting standards require consolidated financial statements, the
report must be on the consolidated entity of which the corporation
concerned is part.
(3) The report in respect of a corporation may omit material that would
5 otherwise be included under subclause (1)(e) if it is likely to result in
unreasonable prejudice to --
(a) the corporation; or
(b) if consolidated financial statements are required -- the
consolidated entity or any entity (including the corporation
10 concerned) that is part of the consolidated entity.
(4) If material is omitted from the report, the report must say so.
12. Annual directors' report -- specific information
(cf. s. 300 Corporations Act)
(1) The directors' report for a financial year must include details of --
15 (a) dividends or distributions paid during the year;
(b) dividends or distributions recommended or declared for
payment, but not paid, during the year; and
(c) the name of each person who has been a director of the
corporation at any time during or since the end of the year
20 and the period for which they were a director.
(2) If --
(a) during or since the financial year, the corporation concerned
has indemnified against a liability a person who is or has been
a director or auditor of the corporation or of a related body
25 corporate; and
(b) but for Schedule 2 clause 15(3) or (4), subclause (1) of that
clause would have prohibited the corporation from
indemnifying the person against that liability,
the report must set out --
30 (c) the person's name;
(d) the nature of the liability; and
(e) how much the corporation paid, and what else the corporation
did, by way of indemnifying the person against the liability.
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(3) If --
(a) during or since the financial year, the corporation concerned
has made a relevant agreement (as defined in section 9 of the
Corporations Act) for indemnifying against a liability a
5 person who is or has been a director or auditor of the
corporation or of a related body corporate; and
(b) but for Schedule 2 clause 15(3) or (4), subclause (1) of that
clause would prohibit the corporation from indemnifying the
person against that liability,
10 the report must set out particulars of the relevant agreement,
including --
(c) the person's name;
(d) the nature of the liability; and
(e) how much the relevant agreement provides for the
15 corporation to pay, and what else it provides for the
corporation to do, by way of indemnifying the person against
the liability.
(4) If --
(a) during or since the financial year, the corporation concerned
20 has paid, or agreed to pay, a premium in respect of a contract
insuring against a liability a person who is or has been a
director or auditor of the corporation or of a related body
corporate; and
(b) but for Schedule 2 clause 15(8), subclause (5) of that clause
25 would have prohibited the corporation from paying, or
agreeing to pay, the premium,
the report must --
(c) name the person and state that the corporation has paid, or
agreed to pay, a premium in respect of a contract insuring the
30 person against a liability; and
(d) set out, except so far as prohibited by the contract itself, the
nature of the liability and the amount of the premium.
(5) The report must also include details of --
(a) each director's qualifications, experience and special
35 responsibilities;
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Schedule 5 Financial administration and audit
(b) the number of meetings of the board held during the year and
each director's attendance at those meetings; and
(c) the number of meetings of each board committee held during
the year and each director's attendance at those meetings.
5 13. Annual directors' report -- other specific information
(cf. s. 300A Corporations Act)
The directors' report in respect of a corporation for a financial year
must also include --
(a) discussion of board policy for determining the nature and
10 amount of emoluments of board members and senior
executives of the corporation;
(b) discussion of the relationship between such policy and the
corporation's performance; and
(c) details of the nature and amount of each element of the
15 emolument of each director and each of the 5 named officers
of the corporation receiving the highest emolument.
14. Audit of annual financial report
(cf. s. 301 Corporations Act)
A corporation must have the financial report for a financial year
20 audited by the Auditor General in accordance with Subdivision 2 and
clauses 34 and 35 and obtain an auditor's report.
Subdivision 2 -- Audit and auditor's report
15. Audit opinion
(cf. s. 307 Corporations Act)
25 The Auditor General must form an opinion about --
(a) whether the financial report is in accordance with this
Schedule, including --
(i) clause 8 (compliance with accounting standards and
regulations); and
30 (ii) clause 9 (true and fair view);
(b) whether he or she has been given all information, explanation
and assistance necessary for the conduct of the audit;
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(c) whether the corporation concerned has kept financial records
sufficient to enable a financial report to be prepared and
audited; and
(d) whether the corporation concerned has kept other records and
5 registers as required by this Schedule.
16. Auditor General's report on annual financial report
(cf. s. 308 Corporations Act)
(1) The Auditor General must report to the Minister on whether he or she
is of the opinion that the financial report is in accordance with this
10 Schedule, including --
(a) clause 8 (compliance with accounting standards and
regulations); and
(b) clause 9 (true and fair view).
(2) If not of that opinion, the Auditor General's report must say why.
15 (3) If the Auditor General is of the opinion that the financial report does
not comply with an accounting standard, his or her report must, to the
extent it is practicable to do so, quantify the effect that
non-compliance has on the financial report.
(4) If it is not practicable to quantify the effect fully, the report must say
20 why.
(5) The Auditor General's report must describe --
(a) any defect or irregularity in the financial report; and
(b) any deficiency, failure or shortcoming in respect of the
matters referred to in clause 15.
25 (6) The report must specify the date on which it is made.
(7) The Auditor General must give a copy of the report to the directors of
the corporation concerned as soon as practicable after it has been
given to the Minister.
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17. Auditor General's power to obtain information
(cf. s. 310 Corporations Act)
The Auditor General --
(a) has a right of access at all reasonable times to the books of a
5 corporation; and
(b) may require any officer of the corporation to give the Auditor
General information, explanations or other assistance for the
purposes of the audit or review.
18. Assisting Auditor General
10 (cf. s. 312 Corporations Act)
An officer of a corporation must --
(a) allow the Auditor General access to the books of the
corporation; and
(b) give the Auditor General any information, explanation or
15 assistance required under clause 17.
Subdivision 3 -- Special provisions about consolidated
financial statements
19. Directors and officers of controlled entity to give information
(cf. s. 323 Corporations Act)
20 If a corporation has to prepare consolidated financial statements, a
director or officer of a controlled entity must give the corporation all
information requested that is necessary to prepare the consolidated
financial statements and the notes to those statements.
20. Auditor General's power to obtain information from controlled
25 entity
(cf. s. 323A Corporations Act)
(1) Where the financial report includes consolidated financial statements,
the Auditor General --
(a) has a right of access at all reasonable times to the books of
30 any controlled entity; and
(b) may require any officer of the entity to give the Auditor
General information, explanations or other assistance for the
purposes of the audit or review.
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(2) The information, explanations or other assistance required under
subclause (1)(b) is to be given at the expense of the corporation
concerned.
21. Controlled entity to assist the Auditor General
5 (cf. s. 323B Corporations Act)
If a corporation has to prepare a financial report that includes
consolidated financial statements, an officer or auditor of a controlled
entity must --
(a) allow the Auditor General access to the controlled entity's
10 books; and
(b) give the Auditor General any information, explanation or
assistance required under clause 20.
22. Application of subdivision to entity that has ceased to be
controlled
15 (cf. s. 323C Corporations Act)
Clauses 19, 20 and 21 apply to the preparation or audit of a financial
report that covers a controlled entity even if the entity is no longer
controlled by the corporation concerned when its financial report is
being prepared or audited.
20 Subdivision 4 -- Financial years of the corporation and the
entities it controls
23. Financial years
(cf. s. 323D Corporations Act)
(1) The financial year of a corporation is the 12 month period ending on
25 30 June.
(2) Where a corporation has to prepare consolidated financial statements,
it must do whatever is necessary to ensure that the financial years of
the consolidated entities are synchronised with its own financial years.
(3) It must achieve this synchronisation by the end of 12 months after the
30 situation that calls for consolidation arises.
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Schedule 5 Financial administration and audit
Division 4 -- Accounting standards
24. Accounting standards
(cf. s. 334 Corporations Act)
(1) An accounting standard applies to --
5 (a) periods ending after the commencement of the standard; or
(b) periods ending, or starting, on or after a later date specified in
the standard.
(2) A corporation may elect to apply the accounting standard to an earlier
period unless the standard says otherwise.
10 (3) The election must be made in writing by the directors of the
corporation.
25. Equity accounting
(cf. s. 335 Corporations Act)
This Schedule (and, in particular, the provisions on consolidation of
15 financial statements) does not prevent accounting standards from
incorporating equity accounting principles.
26. Interpretation of accounting standards
(cf. s. 337 Corporations Act)
In interpreting an accounting standard --
20 (a) unless the contrary intention appears, expressions used in the
standard have the same meaning as they have in Chapter 2M
of the Corporations Act; and
(b) the provisions of Part 1.2 of the Corporations Act apply as if
the standard's provisions were provisions of that Chapter.
25 27. Evidence of text of accounting standard
(cf. s. 339 Corporations Act)
(1) This clause applies to a document that purports to be published by or
on behalf of the AASB or ASIC and to set out the text of --
(a) a specified standard as in force at a specified time under
30 section 334 of the Corporations Act; or
(b) a specified provision of a standard of that kind.
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(2) It also applies to a copy of a document of that kind.
(3) In the absence of evidence to the contrary, a document to which this
clause applies is proof in proceedings under this Act that --
(a) the specified standard was in force at that time under that
5 section; and
(b) the text set out in the document is the text of the standard
referred to in subclause (1)(a) or the provision referred to in
subclause (1)(b).
Division 5 -- Exemptions and modifications
10 28. Treasurer's power to make specific exemption orders
(cf. s. 340 Corporations Act)
(1) On an application made in accordance with subclause (3) in relation
to a corporation, the Treasurer may make an order in writing relieving
any of the following from all or specified requirements of Divisions 2
15 and 3 --
(a) the directors;
(b) the corporation;
(c) the Auditor General.
(2) The order may --
20 (a) be expressed to be subject to conditions; and
(b) be indefinite or limited to a specified period.
(3) The application must be --
(a) authorised by a resolution of the directors;
(b) in writing and signed by a director; and
25 (c) lodged with the Treasurer.
(4) The Treasurer must give the corporation concerned written notice of
the making, revocation or suspension of the order.
(5) If the Treasurer makes an order under subclause (1) the Treasurer is to
cause the text of the order to be laid before each House of Parliament
30 within 14 days after the order is made.
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(6) If at the commencement of the period referred to in subclause (5) a
House of Parliament is not sitting and the Treasurer is of the opinion
that that House will not sit during that period, the Treasurer is to
transmit a copy of the order to the Clerk of that House and the copy of
5 the order so transmitted is to be --
(a) taken to have been laid before that House; and
(b) taken to be a document published by order or under the
authority of that House.
(7) The laying of a copy of a document that is taken to have occurred
10 because of subclause (6)(a) is to be recorded in the Minutes, or Votes
and Proceedings, of the House on the first sitting day of the House
after the receipt of the copy by the Clerk.
29. Criteria for specific exemption orders and class orders
(cf. s. 342 Corporations Act)
15 To make an order under clause 28, the Treasurer must be satisfied that
complying with the relevant requirements of Divisions 2 and 3 would --
(a) make the financial report or other reports misleading;
(b) be inappropriate in the circumstances; or
(c) impose unreasonable burdens.
20 30. Extension of time
(1) Where any provision of this Schedule requires any act or thing to be
observed or performed by a certain date or within a specified time by
a person, other than the Auditor General, the Minister may on
application by that person extend the date of, or the time for
25 observance or performance of such act or thing to such date or time as
the Minister thinks appropriate.
(2) Where the Minister grants an extension of time under subclause (1),
the provisions of clause 28(5) apply, with all necessary changes, to the
memorandum evidencing the extension as if it were an order for the
30 purposes of that subclause.
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Division 6 -- Sanctions for contraventions of this Schedule
31. Contravention of Divisions 2 and 3
(cf. s. 344 Corporations Act)
(1) A director of a corporation contravenes this subclause if he or she
5 fails to take all reasonable steps to comply with, or to secure
compliance with, Division 2 or 3.
(2) The penalty applicable to a contravention of subclause (1) is --
(a) in a case to which paragraph (b) does not apply, $5 000; or
(b) if the offence was committed with intent to deceive or
10 defraud the Minister or the Treasurer or creditors of the
corporation, $20 000 or imprisonment for 5 years or both.
(3) Subclause (1) does not apply to clause 17, 18, 20 or 21.
Division 7 -- Miscellaneous
32. Deadline for reporting to the Minister
15 (cf. s. 315 Corporations Act)
(1) In subclause (2) --
"prescribed day" means the tenth working day after receipt by the
directors under clause 16 of the Auditor General's report.
(2) A corporation must, as soon as practicable but not later than the close
20 of business on the prescribed day in each year, send to the Minister a
copy of the annual report required by section 111 of this Act.
33. Annual financial reporting to the Minister
(cf. s. 314 Corporations Act)
The annual report of a corporation under section 111 is to contain the
25 following documents --
(a) the financial report for the year;
(b) the directors' report for the year;
(c) the Auditor General's report on the financial report;
(d) a copy of any order of the Treasurer under clause 28.
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34. Audit
(1) If the Auditor General cannot complete the audit of a corporation by
30 September in any year he or she is to submit an interim report to
the Minister setting out the reasons for his or her inability to complete
5 the audit by that date, and the Minister is to cause copies of the report
to be laid before both Houses of Parliament, within 7 sitting days of
receiving that report.
(2) Section 92 of the Financial Administration and Audit Act 1985
applies to the audit of the corporation.
10 35. Powers and duties of the Auditor General
(1) If the Auditor General in the course of the performance of duties as
auditor of a corporation and its subsidiaries, is satisfied that --
(a) there has been a contravention of any provision of this
Schedule; and
15 (b) the circumstances are such that in the Auditor General's
opinion the matter has not been or will not be adequately
dealt with by comment in the Auditor General's report on the
financial statements or by bringing the matter to the notice of
the board of the corporation,
20 the Auditor General is to forthwith report the matter to the Minister in
writing.
(2) The provisions of sections 78 to 80 and 82 to 91 and section 95 of the
Financial Administration and Audit Act 1985 apply to the corporation
as if it were a statutory authority named in Schedule 1 to that Act.
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Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
accounting standard..................................................................... Sch. 5, cl. 1(2)
acquire .......................................................................................................34(1)
ancillary services ........................................................................................34(1)
area of operations .......................................................................................56(1)
arrangement ...............................................................................................77(3)
Authority........................................................................................................ 74
bank.........................................................................................................124(2)
board........................................................................................................... 3(1)
business arrangement .................................................................................61(1)
chief executive officer ................................................................................. 3(1)
Commissioner for Public Sector Standards................................................... 3(1)
community service obligations .................................................................103(1)
company ..................................................................................... Sch. 5, cl. 1(2)
corporation............................................................ 3(1), 35, 44, 47, 54, 62(1), 82
Corporations Act ......................................................................................... 3(1)
debt paper ................................................................................................130(1)
declared matters .........................................................................................57(2)
director ....................................................................................3(1), Sch. 1, cl. 1
disposal order.............................................................................................69(2)
dispose of...................................................................................................69(1)
document .................................................................................................119(1)
Economic Regulation Authority................................................................... 3(1)
electricity .................................................................................................... 3(1)
electricity distribution system .....................................................................62(1)
Electricity Generation Corporation .............................................................. 3(1)
Electricity Networks Corporation ................................................................ 3(1)
Electricity Retail Corporation ...................................................................... 3(1)
electricity transmission system....................................................................62(1)
executive officer.......................................................................................... 3(1)
financial records.......................................................................... Sch. 5, cl. 1(2)
financial year............................................................................... Sch. 5, cl. 1(1)
function....................................................................................................... 3(1)
gas .............................................................................................................. 3(1)
information ..............................................................................................119(1)
interest rate ..............................................................................................132(2)
latest draft plan...........................................................................................97(1)
latest draft statement.................................................................................106(1)
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Defined Terms
load characteristics ...........................................................................Sch. 4, cl. 2
management...............................................................................................21(2)
member of staff ........................................................................................... 3(1)
members of staff.............................................................................. 26(4), 31(1)
Minister .....................................................................................................57(1)
new generation .................................................................................Sch. 4, cl. 2
non-executive director ................................................................................. 3(1)
notifiable interest........................................................................Sch. 2, cl. 12(1)
participate ..................................................................................................61(1)
pay.............................................................................................Sch. 2, cl. 15(6)
prescribed contract .....................................................................................84(1)
prescribed day ............................................................................Sch. 5, cl. 32(1)
public service officer ..................................................................................12(1)
Regional Power Corporation........................................................................ 3(1)
regulations .................................................................................. Sch. 5, cl. 1(1)
relative.......................................................................................Sch. 2, cl. 14(1)
renewable sources ......................................................................................34(1)
second party...............................................................................................79(1)
significant asset ..........................................................................................69(1)
South West interconnected system ............................................................... 3(1)
specified.....................................................................................39(1), 50(1), 82
subsidiary.................................................................................................... 3(1)
substantial new generation................................................................Sch. 4, cl. 2
summary conviction penalty ........................................................ Sch. 2, cl. 1(1)
telecommunication services ........................................................................34(1)
the corporation .................................................................................Sch. 4, cl. 1
the designated period....................................................................... 41(2), 51(2)
third party ..................................................................................................79(1)
total installed capacity ......................................................................Sch. 4, cl. 2
transaction..................................................................................................70(1)
Transitional Act .........................................................................................57(1)
Treasurer..................................................................................................... 3(1)
Treasury officer........................................................................................140(1)
unallocated asset or liability........................................................................57(1)
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