Public Corporations Act 1993

This

Act may be cited as the Public

Corporations Act 1993.

In this Act—

associate—see subsection (2);

beneficial interest in property includes a potential beneficial interest in property subject to a discretionary trust;

beneficiary includes a person who is an object of a discretionary trust;

board in relation to a public corporation, means the board of directors of the corporation (also see section 4);

council means a municipal or district council;

debenture has the same meaning as in the Corporations

Act 2001 of the Commonwealth;

director in relation to a public corporation, means a person appointed as a member of the board of the corporation (also see section 4);

dividend means payment out of profit (whether earned in the current or a previous financial year) or payment in the nature of a return of capital;

domestic partner means a person who is a domestic partner within the meaning of the

Family

Relationships Act 1975, whether declared as such under that Act or not;

executive in relation to a public corporation or a subsidiary of a public corporation, means an employee of the corporation or subsidiary who is concerned or takes part in the management of the corporation or subsidiary;

financial year in relation to a public corporation, means—

the period of 12 months ending on 30 June in any year; or

any other period of 12 months prescribed by regulation in relation to the corporation;

incorporating

Act in relation to a statutory corporation or public corporation, means the Act by or under which the corporation is established;

liability includes contingent liability;

managed investment scheme has the same meaning as in the Corporations

Act 2001 of the Commonwealth;

Minister in relation to a public corporation, means the Minister to whom the administration of the corporation's incorporating Act is for the time being committed;

operations of a public corporation or any of its subsidiaries includes, for any purposes specified by regulation, any operations carried out by a specified company or entity or pursuant to a specified trust scheme, partnership, joint venture or other scheme or arrangement and declared by regulation to form part of the operations of the corporation or any of its subsidiaries for those purposes;

public corporation—see section 5(3);

record includes—

information stored or recorded by a computer or any other means; and

a computer tape or disk or any other device on or by which information is stored or recorded;

relative in relation to a person, means the spouse, domestic partner, parent or remoter linear ancestor, son, daughter or remoter issue or brother or sister of the person;

relevant interest has the same meaning as in the Corporations

Act 2001 of the Commonwealth;

remuneration in relation to an office or employment, includes any benefit of pecuniary value attaching to the office or employment;

senior executive in relation to a public corporation or a subsidiary of a public corporation, means an employee of the corporation or subsidiary holding or acting in—

the position of chief executive of the corporation or subsidiary; or

an executive position declared to be a senior executive's position by the corporation's Minister by notice in the Gazette (which notice may be varied or revoked by subsequent notice in the Gazette);

spouse—a person is the spouse of another if they are legally married;

statutory corporation means a body corporate (other than a council or university) that—

is established by or under another Act; and

comprises or includes, or has a governing body that comprises or includes, a

Minister or a person or body appointed by the Governor or a

Minister;

subsidiary in relation to a public corporation, means—

a company that is a subsidiary of the public corporation within the meaning of the Corporations

Act 2001 of the Commonwealth; or

a body corporate established as a subsidiary of the public corporation by regulation under Part

5.

For the purposes of this Act, a person is an associate of another person if—

the other person is a relative of the person or of the person's spouse or domestic partner; or

the other person—

is a body corporate; and

the person or a relative of the person or of the person's spouse or domestic partner has, or two or more such persons together have, a relevant interest or relevant interests in shares in the body corporate the nominal value of which is not less than 10 per cent of the nominal value of the issued share capital of the body corporate;

or

the other person is a trustee of a trust of which the person, a relative of the person or of the person's spouse or domestic partner or a body corporate referred to in paragraph (b) is a beneficiary; or

the person is declared by the regulations to be an associate of the other person.

For the purposes of this Act, in determining whether a company is a subsidiary of a public corporation, any shares held, or powers exercisable by, the corporation or any other body are not to be taken to be held or exercisable in a fiduciary capacity by reason of the fact that the corporation is an instrumentality of the Crown and holds its property on behalf of the Crown.

Note—

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

Where a board of directors is not separately constituted as the governing body of a public corporation—

a reference in this Act to a board is, in relation to that corporation, a reference to the corporation; and

a reference in this Act to a director is, in relation to that corporation, a reference to a member of the corporation.

A provision of this Act applies to a statutory corporation to which the provision is declared to apply—

by the corporation's incorporating Act; or

by regulation.

If a provision of this Act is declared to apply to a statutory corporation (other than a corporation sole), Part

4 and sections 36A to 38A

apply to the corporation subject to any modifications prescribed by or under the corporation's incorporating Act or this

Act.

Where a provision of this Act is declared by regulation to apply to a statutory corporation, the provision prevails to the extent of any inconsistency over the provisions of the corporation's incorporating

Act.

A reference in a provision of this Act to a public corporation is a reference to a statutory corporation to which the provision applies.

A declaration may not be made by regulation for the purposes of this section in a form such that a provision of this Act is declared to apply to more than one statutory corporation by the same regulation.

A public corporation—

is an instrumentality of the Crown and holds its property on behalf of the Crown; and

is subject to control and direction by its Minister.

A direction may not be given by the Minister under this section contrary to the provisions of another Act.

The corporation may not be directed by its Minister to do anything that would be beyond its powers as provided by its incorporating Act and any other Act.

A direction given by the Minister under this section must be in writing.

Subject to subsection (7), where the Minister gives a direction to a public corporation under this section—

the

Minister must cause the direction to be published—

by notice in the Gazette within 14 days after the direction was given;

and

by tabling the direction in both Houses of Parliament within six sitting days after its publication in the Gazette; and

the corporation must cause the direction to be published in its next annual report.

Where the corporation is of the opinion that a direction should not be published for the reason that its publication—

might detrimentally affect the corporation's commercial interests; or

might constitute breach of a duty of confidence; or

might prejudice an investigation of misconduct or possible misconduct, the corporation may advise the Minister of that opinion giving the reason for the opinion.

Where the Minister is satisfied that a direction should not be published for a reason referred to in subsection (6), the direction need not be published by the Minister or the corporation as required by subsection (5) but—

the

Minister must cause a copy of the direction to be presented to the

Economic and Finance Committee of the Parliament within 14 days after the direction was given; and

the corporation must cause a statement of the fact that the direction was given to be published in its next annual report.

A public corporation must, at the request in writing of its Minister, furnish the Minister with such information or records in the possession or control of the corporation as the Minister may require in such manner and form as the Minister may require.

Where a record in the possession or control of the corporation is furnished to the Minister under this section, the Minister may make, retain and deal with copies of the record as the Minister thinks fit.

Where the corporation considers that any information or record furnished under this section contains matters that should be treated for any reason as confidential, the corporation may advise the Minister of that opinion giving the reason for the opinion, and the Minister may, subject to subsection (4), act on that advice as the Minister thinks fit.

Where the Minister is satisfied on the basis of the corporation's advice under subsection (3) that the corporation owes a duty of confidence in respect of a matter, the Minister must ensure the observance of that duty in respect of the matter, but this subsection does not prevent the

Minister from disclosing the matter as required in the proper performance of ministerial functions or duties.

A person authorised in writing by a public corporation's Minister or the Treasurer may attend (but not participate in) any meeting of the board of the corporation and may have access to papers provided to directors for the purposes of the meeting.

Where the board considers that a matter dealt with at a meeting attended by a representative of the Minister or the Treasurer should be treated for any reason as confidential, the board may advise the

Minister or the Treasurer, as the case may require, of that opinion giving the reason for the opinion, and the Minister or the Treasurer may, subject to subsection (3), act on that advice as the Minister or the Treasurer thinks fit.

Where the Minister or the Treasurer is satisfied on the basis of the board's advice under subsection (2) that the corporation owes a duty of confidence in respect of a matter, the Minister or the Treasurer, as the case may be, must ensure the observance of that duty in respect of the matter, but this subsection does not prevent the Minister or the Treasurer from disclosing the matter as required in the proper performance of ministerial functions or duties.

Where a public corporation discloses to its Minister in pursuance of this

Act a matter in respect of which the corporation owes a duty of confidence, the corporation must give notice in writing of the disclosure to the person to whom the duty is owed.

A director of a public corporation does not commit any breach of duty by reporting a matter relating to the affairs of the corporation or a subsidiary of the corporation to the corporation's Minister.

A public corporation must perform its commercial operations in accordance with prudent commercial principles and use its best endeavours to achieve a level of profit consistent with its functions.

A public corporation must perform its non-commercial operations (if any) in an efficient and effective manner consistent with the requirements of its charter.

Where a public corporation's charter identifies any operations of the corporation as non-commercial operations, the operations are to be regarded as such for the purposes of this section.

A charter must be prepared for a public corporation by its Minister and the Treasurer after consultation with the corporation.

The charter must deal with the following matters:

the nature and scope of the commercial operations to be undertaken, including—

the nature and scope of any investment activities;

the nature and scope of any operations or transactions outside the

State;

the nature and scope of any operations or transactions that may be undertaken by subsidiaries of the corporation, by other companies or entities associated with the corporation or pursuant to a trust scheme or a partnership or other scheme or arrangement for sharing of profits, co-operation or joint venture with another person; and

the nature and scope of any non-commercial operations to be undertaken and the arrangements for their costing and funding; and

all requirements of the corporation's Minister or the Treasurer as to—

the corporation's obligations to report on its operations;

the form and contents of the corporation's accounts and financial statements;

any accounting, internal auditing or financial systems or practices to be established or observed by the corporation;

the setting of fees or charges, the acquisition or disposal of capital or assets or the borrowing or lending of money.

The charter may—

limit the functions or powers of the corporation; and

deal with any other matter not specifically referred to in subsection (2).

The charter may not extend the functions or powers of the corporation as provided by the corporation's incorporating Act and any other Act.

The corporation's Minister and the Treasurer must, after consultation with the corporation, review the charter at the end of each financial year.

The corporation's Minister and the Treasurer may, after consultation with the corporation, amend the charter at any time.

The charter or any amendment to the charter comes into force and is binding on the corporation on a day specified in the charter or amendment (but without affecting any contractual obligations previously incurred by the corporation).

On the charter or an amendment to the charter coming into force, the corporation's Minister must—

within six sitting days, cause a copy of the charter, or the charter in its amended form, to be laid before both Houses of Parliament; and

within

14 days (unless such a copy is sooner laid before both Houses of

Parliament under paragraph (a)), cause a copy of the charter, or the charter in its amended form, to be presented to the Economic and Finance Committee of the

Parliament.

The corporation's Minister and the Treasurer must, when preparing the charter for a public corporation, also prepare, after consultation with the corporation, a performance statement setting the various performance targets that the corporation is to pursue in the coming financial year or other period specified in the statement and dealing with such other matters as the Minister and the Treasurer consider appropriate.

The corporation's Minister and the Treasurer must, after consultation with the corporation, review the performance statement when reviewing the corporation's charter.

The corporation's Minister and the Treasurer may, after consultation with the corporation, amend the performance statement at any time.