Government Financing Authority Act 1982

This Act may be cited as the Government Financing Authority Act 1982.

In this Act, unless the contrary intention appears:

the Authority means the South Australian Government Financing Authority established under Part 2;

the Board means the South Australian Government Financing Advisory Board established by Part 3A;

loan means any form of financial accommodation (not being a grant) and lend and borrow have corresponding meanings;

the Minister responsible in relation to a semi-government authority means the Minister having the administration of the Act by or under which the semi-government authority is constituted and includes a Minister who is a semi-government authority;

semi-government authority means a body corporate—

that—

is constituted of a Minister of the Crown; or

has a governing body comprised of or including persons or a person appointed by the Governor or a Minister or other instrumentality of the Crown; or

is financed wholly or in part out of public funds; and

that is declared by proclamation to be a semi-government authority for the purposes of this Act, but does not include a council as defined in the Local Government Act 1934;

security includes any document evidencing indebtedness;

the Under Treasurer means the person for the time being holding or acting in the office of Under Treasurer.

The Governor may, by proclamation, declare a body corporate to be a semi-government authority for the purposes of this Act.

The Governor may, by proclamation, vary or revoke a declaration under subsection (2).

Note—

For definition of divisional penalties (and divisional expiation fees) see Appendix.

The South Australian Government Financing Authority is established.

The Authority—

is a body corporate with perpetual succession and a common seal; and

is capable in its corporate name of acquiring, holding, dealing with and disposing of real and personal property; and

is capable of acquiring or incurring any other rights or liabilities, and of suing and being sued; and

holds its property on behalf of the Crown; and

has the powers, authorities, duties and functions prescribed by or under this or any other Act.

Where an apparently genuine document purports to bear the common seal of the Authority, it will be presumed in any legal proceedings, in the absence of proof to the contrary, that the common seal of the Authority was duly affixed to the document.

The Authority is constituted of the Under Treasurer.

The functions of the Authority are—

to develop and implement borrowing and investment programmes for the benefit of semi-government authorities; and

to act as captive insurer of the Crown, including undertaking and carrying on in South Australia and elsewhere the business of insurers, re-insurers and co‑insurers of all or any risks of the Crown; and

to provide advice to the Crown on issues relating to the insurance and management of risks of the Crown; and

to engage in such other financial or insurance-related activities as are determined by the Treasurer to be in the interests of the State.

For the purposes of this Act, the Authority may, with the approval of the Treasurer—

borrow money within or outside Australia; or

accept money on deposit or loan from the Treasurer or a semi-government authority; or

lend or invest money held by the Authority; or

issue, sell, purchase, pay-off, repurchase, redeem, convert or otherwise deal in or with securities or shares; or

open and maintain accounts with an ADI or any other financial institution within or outside Australia; or

appoint an ADI or other person to act as underwriter, manager, trustee, attorney or agent in connection with any transaction within or outside Australia; or

enter into contracts of guarantee or indemnity; or

acquire, hold, deal with and dispose of real and personal property; or

enter into partnerships and joint ventures and form companies; or

take out with other persons or bodies insurance or re-insurance of any class of all or any risks of the Crown; or

take such action as may be necessary or expedient to satisfy or compromise any claims made against the Crown in respect of risks of the Crown (including claims that may not necessarily be valid in law); or

take such action as may be necessary or expedient for the realisation, enforcement, assignment or extinguishment of rights against third parties arising out of or in connection with the Authority's captive insurance function, including (for example) carrying on a third party's business as a going concern; or

do all acts necessary or convenient for enabling the Authority to carry out its captive insurance function in any foreign jurisdiction, including obtaining the registration or legal recognition of the Authority in foreign jurisdictions; or

enter into any agreement or arrangement of a kind not previously mentioned in this subsection or acquire or incur any other rights or liabilities; or

exercise any other powers that are necessary or expedient for the performance of its functions.

The approval of the Treasurer under this section—

may be conditional; and

may relate to a proposed transaction or may relate to transactions of a particular kind, or transactions generally, that the Authority may wish to enter into in the future; and

may be varied or revoked by the Treasurer at any time in respect of transactions not yet entered into.

In this section—

Crown means the Crown in right of South Australia and includes an instrumentality or agency of the Crown (but does not include an instrumentality or agency of the Crown declared by the Treasurer by notice in the Gazette to be excluded from the ambit of this definition);

risks of the Crown includes—

a direct risk of the Crown; and

a risk accepted by the Crown; and

a risk arising under a guarantee or indemnity given by the Crown, whether or not the risk relates to an officer, employee or agent of the Crown or property owned by or held on behalf of the Crown.

Subject to subsection (2), a transaction to which the Authority is a party or apparently a party (whether made or apparently made under the Authority's common seal or by a person with authority to bind the Authority) is not invalid because of—

any deficiency of power on the part of the Authority;

any procedural irregularity on the part of the Under Treasurer or of any officer, employee or agent of the Authority;

any procedural irregularity affecting the appointment of an officer, employee or agent of the Authority.

This section does not validate a transaction in favour of a party—

who enters into the transaction with actual knowledge of the deficiency or irregularity; or

who has a connection or relationship with the Authority such that the person ought to know of the deficiency or irregularity.

The Authority must, in the exercise and performance of its powers and functions, act in accordance with proper principles of financial management and, having regard to the nature of the captive insurance function of the Authority, with a view to avoiding a loss.

Any surplus of funds remaining after the costs of the Authority have been met in any financial year must be paid into the General Revenue of the State or otherwise dealt with as the Treasurer may determine.

Subsection (2) does not apply to funds related to the captive insurance function of the Authority.

The Authority is, in the exercise and performance of its powers and functions, subject to the control and direction of the Treasurer.

Money provided by the Treasurer to the Authority will be regarded for all purposes as having been provided upon such terms and conditions as the Treasurer may from time to time determine.

Liabilities incurred or assumed by the Authority in pursuance of this Act are guaranteed by the Treasurer.

Where a transaction to which the Authority is a party or apparently a party is valid by virtue of section 11A, liabilities incurred or assumed by the Authority in respect of the transaction will be taken for the purposes of subsection (1), to have been incurred or assumed in pursuance of this Act.

A liability of the Treasurer under a guarantee arising by virtue of subsection (1) will be satisfied out of the General Revenue of the State which is appropriated by this section to the necessary extent.

Notwithstanding the provisions of any other Act, a semi-government authority—

may borrow money from the Authority, and, if the Treasurer so directs, must borrow money from the Authority rather than from any other lender; and

may, and, if the Treasurer so directs, must, deposit with or lend to the Authority any money of the semi-government authority that is not immediately required for the purposes of the semi-government authority.

The Treasurer must not give a direction under subsection (1) except as authorised by the regulations and such a direction must not be given, in any event, to the Local Government Financing Authority of South Australia.

The terms and conditions of a transaction under subsection (1) will be as determined by the Treasurer after consultation with the Minister responsible for the semi-government authority.

Subject to subsections (1) and (3), this section does not limit or affect the powers of a semi-government authority to borrow otherwise than from the Authority or to deposit, invest or otherwise deal with money.

Notwithstanding the provisions of the Public Finance and Audit Act 1987 any money under the control of the Treasurer (including any money that may be issued and applied only under the authority of an Act of Parliament) may be deposited with or lent to the Authority by the Treasurer upon such terms and conditions as the Treasurer may determine.