Queensland: Government Owned Corporations Act 1993 (Qld)

Government Owned Corporations Act 1993 An Act to provide for the corporatisation of nominated government entities and for related purposes Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the Government Owned Corporations Act 1993. Part 2 Interpretation 2 Definitions In this Act— associate of a candidate GOC has the meaning given by section 22. associate subsidiary means a GOC Act entity declared by regulation to be a subsidiary of a candidate GOC associate. board of a GOC means the GOC's board of directors. board of directors, for chapter 2, part 6, see section 68. borrow includes— (a) raise money or credit; and (b) obtain financial accommodation; and (c) borrow in a foreign currency. candidate GOC has the meaning given by section 21. Commonwealth tax means tax imposed under a Commonwealth Act. community service obligations has the meaning given by section 112. corporatisation has the meaning given by section 13. corporatisation charter of a candidate GOC means— (a) the draft corporatisation charter approved by the candidate GOC's responsible Ministers as its corporatisation charter; or (b) if the responsible Ministers approve an amendment of the corporatisation charter—the corporatisation charter as amended. department means department of government. dividend, for sections 135 to 137, see section 134. financial accommodation includes a financial benefit, or assistance to obtain a financial benefit, arising from or because of— (a) a loan; or (b) issuing, endorsing or otherwise dealing in promissory notes; or (c) drawing, accepting, endorsing or otherwise dealing in bills of exchange; or (d) issuing, purchasing or otherwise dealing in securities; or (e) granting or taking a lease of any property for financing purposes; or (f) another arrangement prescribed by regulation. GOC (or government owned corporation) has the meaning given by section 5. GOC Act entity means an entity established by a regulation under this Act. GOC Minister has the meaning given by section 6. government company means a corporation incorporated under the Corporations Act all the stock or shares in the capital of which is or are beneficially owned by the State. government entity has the meaning given by section 4. government entity that is to become a GOC has the meaning given by section 23(1). government entity that is to become a subsidiary of a GOC has the meaning given by section 23(2). instrument means an instrument of any kind, and includes, for example— (a) a contract, deed, agreement, arrangement, understanding or undertaking; and (b) a mandate, instruction, notice, authority or order; and (c) a lease, licence, transfer, conveyance or other assurance; and (d) a guarantee, bond, power of attorney, bill of lading, negotiable instrument or order for the payment of money; and (e) a mortgage, charge, lien or security; whether express or implied and whether made or given orally or in writing. key principles of corporatisation has the meaning given by section 16. lease includes— (a) a lease, licence, charter or hiring arrangement of property; and (b) an arrangement under which a right to use, operate or provide services in relation to property is granted by the owner to another person. portfolio Minister has the meaning given by section 6. predecessor, for sections 135 to 137, see section 134. proposed subsidiary of a GOC or candidate GOC means a government entity that is declared by regulation to be a proposed subsidiary of the GOC or candidate GOC. responsible Ministers— (a) of a candidate GOC—see section 29; or (b) of a candidate GOC associate—see section 30. security includes inscribed stock, debenture, bond, debenture stock, note and any other document creating, evidencing or acknowledging indebtedness (whether or not constituting a charge on property). senior executive, of a GOC, includes the holder of an office in the GOC that reports directly to the GOC's chief executive officer and that is commensurate with an office held by a senior executive under the Public Sector Act 2022. share, in relation to a candidate GOC, a GOC or another corporation, means a share in the corporation's share capital. shareholding Ministers, of a GOC, see section 78. statement of corporate intent has the meaning given by section 7. State tax means tax imposed under an Act. statutory GOC closing time means the time at which the Government Owned Corporations Amendment Act 2007, section 11 commences. subsidiary has the meaning given by the Corporations Act, and includes— (a) for a GOC or candidate GOC—a government entity declared by regulation to be a subsidiary of the GOC or candidate GOC; and (b) for a candidate GOC associate—a GOC Act entity declared by regulation to be a subsidiary of the associate. tax includes any tax, fee, duty, levy or charge. terms of appointment or employment include terms relating to— (a) remuneration and allowances; and (b) duration of appointment or employment; and (c) termination of appointment or employment. 3 References to doing of act by GOC In this Act, a reference to the doing of an act by a GOC includes a reference to— (a) the making or giving of an instrument by the GOC; and (b) the transfer of property by or to the GOC; and (c) the incurring of a liability by the GOC. Part 3 Basic concepts 4 Meaning of government entity A government entity is— (a) a government company or part of a government company; or (b) a State instrumentality, agency, authority or entity or a division, branch or other part of a State instrumentality, agency, authority or entity; or (c) a department or a division, branch or other part of a department; or (d) a GOC Act entity; or (e) an entity prescribed by regulation. 5 Meaning of GOC A GOC (or government owned corporation) is a government entity that is— (a) established as a body corporate under an Act or the Corporations Act; and (b) declared by regulation to be a GOC. 6 GOC and portfolio Ministers (1) The Minister is the GOC Minister of every GOC. (2) The Minister who has the duty to administer the legislation (if any) that established, or provides for the structure or management of, the entity that became a GOC is the portfolio Minister of the GOC. (3) However, if— (a) there is not a Minister who is the portfolio Minister under subsection (2); or (b) the portfolio Minister under subsection (2) is the GOC Minister; or (c) the Premier is of the opinion that another Minister should be the portfolio Minister; the portfolio Minister of the GOC is the Minister nominated by the Premier by gazette notice. (4) The Premier must make the nomination by nominating the holder of a particular Ministerial office by reference to the title of the office concerned. (5) The Premier may, in an appropriate case, be nominated under subsection (3) to be the portfolio Minister of the GOC. (6) In this section— GOC includes a candidate GOC. 7 Meaning of statement of corporate intent (1) The statement of corporate intent of a GOC is a document created in relation to the GOC under chapter 3, part 8. (2) It is intended that the statement of corporate intent should represent an agreement between the GOC's board of directors and its shareholding Ministers. Part 4 Operation of Act and application of laws 8 Act binds State This Act binds the State. 9 Extraterritorial operation It is the intention of Parliament that this Act should apply, as far as possible, to— (a) land and things outside Queensland (whether in or outside Australia); and (b) acts, transactions and things done, entered into or happening outside Queensland (whether in or outside Australia); and (c) land, things, acts and transactions (wherever situated, done, entered into or happening) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction (including a foreign country). 10 Application of other laws to GOCs (1) This Act applies to a GOC despite anything in an Act that was enacted before the commencement of this Act. (2) If there is an inconsistency between this Act and an Act enacted before the commencement of this Act, this Act prevails to the extent of the inconsistency. (3) This Act, and any provision of this Act, has effect subject to a provision of an Act enacted after the commencement of this Act that expressly provides that this Act or the provision is subject to it. 11 Application of other laws to candidate GOCs (1) Chapter 2 applies to a candidate GOC despite anything in an Act that was enacted before the commencement of this Act. (2) If there is an inconsistency between chapter 2 and an Act enacted before the commencement of this Act, chapter 2 prevails to the extent of the inconsistency. (3) Chapter 2, and any provision of chapter 2, has effect subject to a provision of an Act enacted after the commencement of this Act that expressly provides that the chapter or provision is subject to it. Part 5 Outline of Act and its background and objectives 12 What Act provides This Act makes provision for a structural reform process (corporatisation) for nominated government entities. 13 Meaning of corporatisation Corporatisation is a structural reform process for nominated government entities that— (a) changes the conditions and (where required) the structure under which the entities operate so that they operate, as far as practicable, on a commercial basis and in a competitive environment; and (b) provides for the continued public ownership of the entities as part of the process; and (c) allows the State, as owner on behalf of the people of Queensland, to provide strategic direction to the entities by setting financial and non-financial performance targets and community service obligations. 14 Objectives of corporatisation The objectives of corporatisation are to improve Queensland's overall economic performance, and the ability of the Government to achieve social objectives, by— (a) improving the efficiency and effectiveness of GOCs; and (b) improving the accountability of GOCs. 15 How objectives of corporatisation are to be achieved—key principles and their elements The objectives of corporatisation are to be achieved through application of the key principles of corporatisation and their elements. 16 Meaning of key principles of corporatisation The 4 key principles of corporatisation, and their elements, are as follows— (a)Principle 1—Clarity of objectives The elements of this principle are that— • each GOC will have clear, non-conflicting objectives; • each GOC will be set specific financial and non-financial performance targets for its commercial activities; • any activities of a governmental policy formulation or regulatory nature will be transferred from the GOC to a department, separate regulatory authority or other agency; • any community service obligations of the GOC will be— • clearly identified in the GOC's statement of corporate intent; and • separately costed; • the GOC will be appropriately compensated for its community service obligations and any funding will be made apparent; • the GOC will be set performance targets for its community service obligations; (b)Principle 2—Management autonomy and authority The elements of this principle are that— • each GOC will have a board of directors; • the board will be required to use its best endeavours to ensure that the GOC meets its performance targets; • the board will be given the autonomy and authority to make commercial decisions within areas of responsibility defined by the corporatisation framework; • existing detailed controls over management decision making will be replaced with strategic monitoring procedures; • the role of Ministers in relation to the GOC will be clearly defined; • Ministerial reserve powers will be required to be exercised in an open way; (c)Principle 3—Strict accountability for performance The elements of this principle are that— • the GOC's board will be accountable to the shareholding Ministers for the GOC's performance; • the GOC's statement of corporate intent will form the basis for accountability; • performance will be monitored by the Government against performance targets specified in the statement of corporate intent; • Government monitoring of the GOC is intended to compensate for the absence of the wide range of monitoring to which listed corporations are subject by, for example, the sharemarket and Commonwealth regulatory agencies; (d)Principle 4—Competitive neutrality The elements of this principle are that— • the efficiency of overall resource use in the State is promoted by ensuring that markets are not unnecessarily distorted; • in order to ensure, wherever possible, that each GOC competes on equal terms with other entities carrying on business, any special advantages or disadvantages of the GOC because of its public ownership or its market power will be removed, minimised or made apparent; • in circumstances where a GOC has excessive market power— • structural reform may be necessary to increase competition; and • special monitoring may be necessary to prevent market abuse. 17 Key objectives of GOC under corporatisation (1) Under corporatisation the key objectives of a GOC are to be commercially successful in the conduct of its activities and efficient in the delivery of its community service obligations. (2) The commercial success and efficiency of a GOC are to be measured against its financial and non-financial performance targets. 18 How Act will enable management of the corporatisation process (1) This Act is intended to enable the corporatisation process to be applied— (a) progressively as government entities move through various stages of the process; and (b) flexibly to achieve consistent outcomes that are appropriate to the broad range of government entities and the stage that they have reached in the corporatisation process. (2) This Act provides, if required, for a transitional stage of corporatisation through preparation and implementation of a corporatisation charter. (3) The Act also imposes accountability and performance monitoring requirements for all GOCs. Chapter 2 Mechanisms for creating GOCs Part 1 Outline of the processes 19 What this part provides This part makes provision for the processes necessary to allow— (a) government entities to become GOCs; and (b) government entities to become subsidiaries of GOCs. 20 Government entity becoming a GOC Before becoming a GOC, a government entity must become a candidate GOC or a candidate GOC associate. 21 Meaning of candidate GOC A candidate GOC is a government entity nominated under part 2 to be a candidate GOC. 22 Meaning of associate of candidate GOC An associate of a candidate GOC is a GOC Act entity nominated under part 2 to be an associate of the candidate GOC. 23 Meaning of certain expressions about government entities (1) A government entity is taken to be a government entity that is to become a GOC if it is a candidate GOC or a candidate GOC associate. (2) A government entity is taken to be a government entity that is to become a GOC subsidiary if it is a subsidiary or proposed subsidiary of a candidate GOC or a subsidiary of a candidate GOC associate. Part 2 Nomination and declaration of entities 24 Nomination of government entity to become candidate GOC (1) The Governor in Council may, by regulation, nominate a government entity that is not already a GOC to be a candidate GOC. (2) To remove any doubt, it is declared that the Governor in Council may nominate 2 or more government entities that are not already GOCs to be a single candidate GOC. (3) This Act applies to entities mentioned in subsection (2) with all necessary modifications. 25 Nomination of GOC Act entity to become candidate GOC associate The Governor in Council may, by regulation, nominate a GOC Act entity to be an associate of a particular candidate GOC. 26 Declaration of GOC Act entity to be subsidiary of candidate GOC associate A regulation may declare a GOC Act entity to be a subsidiary of a particular candidate GOC associate. Part 3 Preparation of corporatisation charter Division 1 Preliminary 27 Meaning of corporatisation charter The corporatisation charter of a candidate GOC sets out the steps by which, and the basis on which— (a) a candidate GOC is to become a GOC; and (b) the key principles of corporatisation, and their elements, are to be implemented. 28 Candidate GOC may become GOC following corporatisation charter (1) A government entity that is a candidate GOC may become a GOC following the preparation and implementation of a corporatisation charter. (2) However, in appropriate cases a candidate GOC may become a GOC even if— (a) it has not fully prepared a corporatisation charter; or (b) it has prepared, but has not fully implemented, a corporatisation charter; or (c) it has not prepared or implemented a corporatisation charter. Division 2 Responsible Ministers 29 Responsible Ministers of candidate GOC (1) This section applies to a candidate GOC. (2) The GOC Minister and the portfolio Minister of the candidate GOC are its responsible Ministers. 30 Responsible Ministers of candidate GOC associate The responsible Ministers of a candidate GOC associate are the Ministers who are the responsible Ministers of the associate's candidate GOC. 31 Responsible Ministers not directors etc. (1) The responsible Ministers of a candidate GOC are not to be treated as directors of the candidate GOC or any subsidiary or proposed subsidiary of the candidate GOC. (2) The responsible Ministers of a candidate GOC associate are not to be treated as directors of the associate or any subsidiary of the associate. (3) A Minister does not incur civil liability for an act or omission done or omitted to be done honestly and without negligence under, or for the purposes of, this Act in relation to a government entity that is to become a GOC or GOC subsidiary. (4) A liability that would, apart from subsection (3), attach to a Minister attaches instead to the State. (5) This section has effect despite the Corporations Act. Division 3 Draft corporatisation charter 32 Responsible Ministers may determine that draft corporatisation charter be prepared and submitted (1) If the responsible Ministers of a candidate GOC consider that the preparation and implementation of a corporatisation charter would facilitate the corporatisation process for the candidate GOC, the Ministers may determine a draft corporatisation charter should be prepared and submitted to the Ministers. (2) If the Ministers determine that a draft corporatisation charter should be prepared and submitted to the Ministers, the following provisions of this division apply. 33 Matters to be included in draft corporatisation charter (1) The responsible Ministers may determine that the draft corporatisation charter should contain all or any of the following matters— (a) an outline of how the key principles of corporatisation and their elements are to be applied to the candidate GOC and a timetable for their application; (b) an outline of any legislation under which the candidate GOC is to operate when it becomes a GOC; (c) target dates for the enactment and commencement of any legislation; (d) a timetable for the adoption of appropriate systems of accounting by the candidate GOC; (e) a timetable for the adoption of commercial management and performance systems by the candidate GOC; (f) a timetable and method for valuing the assets of the candidate GOC and determining its capital structure; (g) recommendations regarding the activities the candidate GOC should undertake before it becomes a GOC; (h) any other matter specified by the responsible Ministers. (2) The responsible Ministers may also determine that the draft corporatisation charter should contain a timetable for— (a) identifying any existing activities of the candidate GOC of a policy formulation or regulatory nature; and (b) identifying options for transferring the activities from the candidate GOC to a department, separate regulatory authority or other agency; and (c) identifying any other community service obligations of the candidate GOC; and (d) costing any community service obligations of the candidate GOC. 34 Responsible Ministers may determine other matters relevant to draft corporatisation charter preparation (1) The responsible Ministers may determine— (a) steps to be taken in preparing the draft corporatisation charter; and (b) any other matter with respect to the preparation of the draft corporatisation charter. (2) Without limiting subsection (1), the responsible Ministers may determine that specified assumptions are to be made in preparing the draft corporatisation charter. (3) Without limiting subsection (1), the responsible Ministers may determine a timetable or time limit for the preparation of the draft corporatisation charter. 35 Responsible Ministers may give directions to candidate GOC about charter preparation (1) The responsible Ministers of the candidate GOC may give the candidate GOC written directions in relation to the candidate GOC and its subsidiaries that appear to them to be necessary or desirable to enable the draft corporatisation charter to be prepared. (2) Without limiting subsection (1), if a charter preparation committee has been appointed to prepare the draft corporatisation charter for the candidate GOC, the responsible Ministers may direct the candidate GOC— (a) to give to the committee information about the candidate GOC and its subsidiaries that the committee considers necessary or desirable for the preparation of the draft charter; or (b) to permit the committee to have access to records and other documents about the candidate GOC and its subsidiaries that the committee considers necessary or desirable for the preparation of the draft charter; or (c) to take steps that the committee considers necessary or desirable for the preparation of the draft charter. (3) The candidate GOC must ensure that a direction given to it under this section is complied with in relation to itself and must, as far as practicable, ensure that it is also complied with in relation to its subsidiaries. (4) In this section— subsidiary includes proposed subsidiary. Division 4 Charter preparation committee 36 Charter preparation committee may be appointed The responsible Ministers of a candidate GOC may appoint a charter preparation committee to prepare a draft corporatisation charter for the candidate GOC. 37 Conduct of meetings and other business (1) The charter preparation committee of a candidate GOC may conduct its business (including its meetings) in the way that it considers appropriate. (2) However, the committee must comply with any direction given to it, and any determination made, by the responsible Ministers. 38 Terms of appointment A member of the charter preparation committee of a candidate GOC holds office on any terms of appointment determined by the responsible Ministers. 39 Resignation and removal from office (1) A member of the charter preparation committee of a candidate GOC may resign by signed notice given to the responsible Ministers. (2) The responsible Ministers may terminate the appointment of a member of the charter preparation committee for any reason or none. 40 Draft corporatisation charter to be given to responsible Ministers (1) When the charter preparation committee of a candidate GOC has prepared the candidate GOC's draft corporatisation charter, the committee must give a copy of the draft charter to the responsible Ministers. (2) The responsible Ministers may return the draft charter to the committee and request it to— (a) consider or further consider any matter and deal with the matter in the draft charter; and (b) revise the draft charter in the light of its consideration or further consideration. (3) The committee must comply with the request. Division 5 Corporatisation charter 41 Approval of draft corporatisation charter (1) The responsible Ministers of a candidate GOC may approve a draft corporatisation charter as the candidate GOC's corporatisation charter. (2) Subsection (1) applies to a draft corporatisation charter whether or not the draft corporatisation charter was prepared by a charter preparation committee appointed for the candidate GOC. 42 Approval of amendments of corporatisation charter The responsible Ministers of a candidate GOC may approve an amendment of the candidate GOC's corporatisation charter. Part 4 Implementation of corporatisation charter 43 Charter administration committee may be appointed The responsible Ministers of a candidate GOC may appoint a charter administration committee to ensure that the candidate GOC's corporatisation charter is implemented in a timely, efficient and effective way. 44 Conduct of meetings and other business (1) The charter administration committee of a candidate GOC may conduct its business (including its meetings) in the way that it considers appropriate. (2) However, the committee must comply with any direction given to it, and any determination made, by the responsible Ministers. 45 Terms of appointment A member of the charter administration committee of a candidate GOC holds office on any terms of appointment determined by the responsible Ministers. 46 Resignation and removal from office (1) A member of the charter administration committee of a candidate GOC may resign by signed notice given to the responsible Ministers. (2) The responsible Ministers may terminate the appointment of a member of the charter administration committee for any reason or none. 47 Responsible Ministers may give directions to candidate GOC about charter implementation (1) The responsible Ministers of a candidate GOC may give the candidate GOC written directions in relation to the candidate GOC and its subsidiaries that appear to them to be necessary or desirable to enable the candidate GOC's corporatisation charter to be implemented. (2) Without limiting subsection (1), if a charter administration committee has been appointed for the candidate GOC, the responsible Ministers may direct the candidate GOC— (a) to give to the committee information about the candidate GOC and its subsidiaries that the committee considers necessary or desirable for the implementation of the candidate GOC's corporatisation charter; or (b) to permit the committee to have access to records and other documents about the candidate GOC and its subsidiaries that the committee considers necessary or desirable for the implementation of the candidate GOC's corporatisation charter; or (c) to take steps that the committee considers necessary or desirable for the implementation of the candidate GOC's corporatisation charter. (3) The candidate GOC must ensure that a direction given to it under this section is complied with in relation to itself and must, as far as practicable, ensure that it is also complied with in relation to its subsidiaries. (4) In this section— subsidiary includes proposed subsidiary. 48 Responsible Ministers may give directions to candidate GOC associate about its functions (1) The responsible Ministers of a candidate GOC associate may give the associate written directions for the associate and its subsidiaries that appear to them to be necessary or desirable about the performance of the associate's functions. (2) The associate must ensure that a direction given to it under this section is complied with in relation to itself and must, as far as practicable, ensure that it is also complied with in relation to its subsidiaries. 49 Corporatisation charter stops having effect when candidate GOC becomes GOC The corporatisation charter of a candidate GOC stops having effect when the candidate, or an associate of the candidate, becomes a GOC. Part 5 Corporatisation facilitative mechanisms 50 Purpose of part This part provides mechanisms to facilitate the corporatisation process by enabling, among other things— (a) a government entity that is a candidate GOC, or a candidate GOC associate, to be in a suitable legal form to become a GOC; or (b) a government entity, other than a government entity that is to become a GOC, to become a GOC subsidiary. 51 Unincorporated entities (1) If a government entity that is not a body corporate is to become a GOC or a GOC subsidiary, a regulation may provide that, on a specified day, the entity— (a) becomes a body corporate; and (b) has the name specified by regulation; and (c) may sue and be sued in its corporate name; and (d) has the functions and powers specified by regulation. (2) An entity provided for under a regulation made under subsection (1) may have a seal. (3) A regulation may make provision with respect to any matter for which it is necessary or convenient to make provision to facilitate the change of the entity from a government entity that is not a body corporate to a body corporate that is to become a GOC or a GOC subsidiary. 52 Entities that are parts of bodies corporate (1) This section applies to a government entity that is part of a body corporate and is to become a GOC or a GOC subsidiary. (2) The body corporate mentioned in subsection (1) may be a body corporate that is— (a) registered under the Corporations Act; or (b) a corporation sole; or (c) a corporation aggregate; or (d) any other form of body corporate. (3) If this section applies to a government entity, a regulation may make provision with respect to any matter for which it is necessary or convenient to make provision— (a) to facilitate the change of the entity from a government entity that is part of a body corporate to a body corporate in its own right that is to become a GOC or a GOC subsidiary; and (b) to make provision for other parts of the body corporate. (4) Without limiting subsection (3), a regulation may make provision with respect to any matter for which provision is made by, or about which a regulation may be made under section 51, even though the government entity concerned is part of a corporation. 53 Candidate GOC associates and subsidiaries of candidate GOC associates (1) A regulation may provide that, on a specified day, a candidate GOC associate or an associate subsidiary— (a) is a body corporate; and (b) has the name specified by regulation; and (c) may sue and be sued in its corporate name; and (d) has the functions and powers specified by regulation. (2) A candidate GOC associate or associate subsidiary provided for under a regulation made under subsection (1) may have a seal. (3) A regulation may make provision with respect to any matter for which it is necessary or convenient to make provision to facilitate the change of the associate or subsidiary from a government entity that is not a body corporate to a body corporate that is to become a GOC or GOC subsidiary. 54 Transfer of assets, liabilities etc. to government entity to become GOC or GOC subsidiary (1) If— (a) a government entity is to become a GOC or GOC subsidiary; and (b) any of the following subparagraphs applies to the entity— (i) the entity is not a body corporate; (ii) the entity is a part of a body corporate; (iii) the entity is a candidate GOC associate or associate subsidiary; (iv) a regulation declares that this section applies to the entity; the regulations may make provision with respect to— (c) whether, and, if so, the extent to which, the entity is the successor in law of a particular person; and (d) the assets and liabilities that are, or are not, assets and liabilities of the entity or of someone else; and (e) the consideration for a transfer of assets to the entity, which may include a debt to be owed by the entity to the shareholding Ministers of the GOC that the entity is to become or of which it is to become a subsidiary; and (f) the instruments that are, or are not, to apply to the entity, including whether or not the instruments are taken to be instruments— (i) to which the entity is a party; or (ii) that were given to, by or in favour of the entity; or (iii) in which a reference is made to the entity; or (iv) under which money is or may become payable, or other property is to be, or may become liable to be, transferred, conveyed or assigned to or by the entity; and (g) the proceedings to which the entity becomes a party in substitution for someone else; and (h) the existing officers and employees of the entity and their rights; and (i) if the entity is a candidate GOC associate or subsidiary of a candidate GOC associate—the existing officers and employees of the candidate GOC and any subsidiary of the candidate GOC and the officers' and employees' rights. (2) Without limiting subsection (1)— (a) a regulation under subsection (1)(e) may make provision about— (i) how the consideration is to be decided; and (ii) the changing of the consideration, whether before or after the entity concerned becomes a GOC or subsidiary of a GOC; and (iii) the terms of the debt; and (b) a regulation under subsection (1)(f) may make provision about whether, and, if so, the extent to which, instruments apply to the entity in substitution for someone else; and (c) a regulation under subsection (1)(h) or (i) may provide for the office (including that of chief executive officer or a senior executive) the officer or employee is to hold in the entity when it becomes a GOC or subsidiary of a GOC. (3) A regulation under subsection (1)(h) or (i) has effect despite the following provisions— • section 60 (Application of certain provisions about interim board of directors and executives of candidate GOC associates and associate subsidiaries) • section 92 (Appointment of chief executive officer) • section 146 (Appointment of senior executives) • schedule 2 (Executives of candidate GOC associates and associate subsidiaries), section 2 (Appointment of chief executive officer). (4) A regulation mentioned in subsection (2)(c) has effect despite the Corporations Act. (5) A regulation under this section may be stated to commence on the entity's becoming a GOC or subsidiary of a GOC or at a later time. 55 Debt owned by State A debt mentioned in section 54(1)(e) is owned by the State and held by the shareholding Ministers for the State. 56 Constitution of candidate GOC (1) The responsible Ministers of a government entity that is to become a GOC may— (a) adopt a constitution for the entity; and (b) amend the constitution previously adopted. (2) The constitution must not be inconsistent with this Act or the Corporations Act. (3) However, if there is any inconsistency between this Act and the Corporations Act regarding the constitution, this Act prevails to the extent of the inconsistency. (4) If there is any inconsistency between this Act and the constitution, this Act prevails to the extent of the inconsistency. (5) If there is any inconsistency between the Corporations Act and the constitution, then, subject to subsection (3), the Corporations Act prevails to the extent of the inconsistency. (6) This section applies to a government entity that is to become a GOC subsidiary as if— (a) the entity were a government entity that is to become a GOC; and (b) the responsible Ministers of the government entity of which it is to become a subsidiary were also its responsible Ministers. 57 Existing board of directors If a candidate GOC has a board of directors or an equivalent body, it is the role of the board or body— (a) to take the steps that the responsible Ministers direct regarding the implementation of the candidate GOC's corporatisation charter; and (b) to ensure that the candidate GOC otherwise performs its functions in a proper, efficient and effective way. 58 Interim board of directors for entity to become GOC or GOC subsidiary (1) If a government entity that is to become a GOC or a GOC subsidiary does not have a board of directors or an equivalent body, a regulation may provide that, on a specified day, the entity is to have an interim board of directors. (2) It is the role of the interim board— (a) to take the steps that the responsible Ministers direct regarding the implementation of the entity's corporatisation charter; and (b) to ensure that the entity otherwise performs its functions in a proper, efficient and effective way. (3) Schedule 1 applies to the interim board. (4) The directors on the interim board go out of office— (a) if the entity is a government entity that is to become a GOC—when the entity becomes a GOC; or (b) if the entity is a government entity that is to become a GOC subsidiary—when the entity of which it is a subsidiary or proposed subsidiary becomes a GOC. (5) Subsection (4) does not limit subsection (3). 59 Interim board of directors and chief executive officer for candidate GOC associate or associate subsidiary (1) A regulation may provide— (a) that a candidate GOC associate or associate subsidiary is to have an interim board of directors and chief executive officer; and (b) for the role of the interim board of directors. (2) The directors on the interim board go out of office— (a) for a candidate GOC associate—when the associate becomes a GOC; or (b) for an associate subsidiary—when the candidate GOC associate of which it is a subsidiary becomes a GOC. 60 Application of certain provisions about interim board of directors and executives of candidate GOC associates and associate subsidiaries (1) Schedule 1 applies to the interim board of a candidate GOC associate or associate subsidiary. (2) Schedule 2 applies to a candidate GOC associate or associate subsidiary. 61 Assistance to candidate GOC associates and associate subsidiaries (1) The responsible Ministers of a candidate GOC may direct the entities mentioned in subsection (2) to assist an associate, or a subsidiary of an associate, of the candidate GOC. (2) The entities are— (a) the chief executive of a government entity of which the candidate GOC, or a subsidiary of the candidate GOC, is part; and (b) the candidate GOC or a subsidiary of the candidate GOC. (3) Without limiting by implication the matters about which directions may be given under subsection (1), a candidate GOC associate or its subsidiary may arrange with the chief executive of a department, or with the candidate GOC or its subsidiaries, for the services of officers and employees of the department, candidate GOC or subsidiaries to be made available to it. 62 Entity must comply with directions An entity must comply with a direction given to it under section 61. 62C [Repealed] 62D [Repealed] 63 Share capital and issue of shares (1) If a candidate GOC does not have a share capital, a regulation may provide that, on a specified day, the candidate GOC is taken to have a share capital of a specified amount. (2) Before becoming a GOC, the candidate GOC must apply the part of its capital that the responsible Ministers direct in paying up, in full, shares in itself. (3) As soon as practicable after complying with subsection (2), the candidate GOC must issue the shares paid up under the subsection. (4) If a candidate GOC does not have a board of directors (including an interim board of directors), the responsible Ministers may apply the part of the capital and issue the shares on the candidate GOC's behalf. (5) Chapter 3, part 3 applies to the candidate GOC as if it were a GOC. (6) Subsections (1) to (4) apply to a government entity (the intended subsidiary) that is to become a GOC subsidiary as if— (a) the intended subsidiary were a candidate GOC; and (b) the responsible Ministers of the government entity of which it is to become a subsidiary were also its responsible Ministers. (7) The responsible Ministers may, by written notice to the intended subsidiary, give directions about the issue, holding and transfer of shares paid up under subsection (2). (8) The intended subsidiary must ensure that the directions are complied with. (9) In subsections (1) to (4)— candidate GOC includes a candidate GOC associate. 64 Variation of share capital (1) A regulation may vary the share capital of a candidate GOC. (2) Without limiting subsection (1), a regulation may provide for— (a) the issue of further shares in a candidate GOC; or (b) the cancellation of issued shares in a candidate GOC; or (c) the consolidation or division of issued shares in a candidate GOC. (3) In this section— candidate GOC includes— (a) a candidate GOC associate; and (b) a government entity that is to become a GOC subsidiary. 65 Registration under Corporations Act (1) A government entity that is to become a GOC is authorised by this section to transfer its incorporation to the Corporations Act and become registered under chapter 5B of that Act. (2) The responsible Ministers of the entity are authorised to take, and authorise other persons to take, any action necessary or desirable to enable the entity to become registered under the Corporations Act, chapter 5B. (3) This section applies to a government entity that is to become a GOC subsidiary as if— (a) the entity were a government entity that is to become a GOC; and (b) the responsible Ministers of the government entity of which it is to become a subsidiary were also its responsible Ministers. 66 Part does not affect existing legal relationships (1) Nothing done under this part— (a) makes a relevant entity liable for a civil wrong or a contravention of a law or for a breach of a contract or confidence; or (b) makes a relevant entity in breach of any instrument, including an instrument prohibiting, restricting or regulating the assignment, novation or transfer of a right or liability or the disclosure of information; or (c) is taken to fulfil a condition that— (i) allows a person to terminate an instrument or obligation or modify the operation or effect of an instrument or obligation; or (ii) allows a person to enforce an obligation contained in an instrument or requires a person to perform an obligation contained in an instrument; or (iii) requires any money to be paid before its stated maturity; or (d) releases a surety or other obligee, wholly or partly, from an obligation. (2) If, apart from this subsection, the advice, consent or approval of a person would be necessary to do something under this part, the advice is taken to have been obtained or the consent or approval is taken to have been given unconditionally. (3) If, apart from this subsection, giving notice to a person would be necessary to do something under this part, the notice is taken to have been given. (4) This section applies despite anything in an instrument. (5) In this section— relevant entity means any of the following— (a) the State; (b) a government entity; (c) an officer, employee or agent of an entity mentioned in paragraph (a) or (b); (d) the responsible Ministers of a government entity. 67 Regulations may deal with other matters (1) A regulation may make provision with respect to any matter for which it is necessary or convenient to make provision to facilitate the transition of a government entity to a GOC or a subsidiary of a GOC. (2) Without limiting subsection (1), a regulation may provide that a provision of this chapter or chapter 1 applies to a subsidiary of a candidate GOC, a proposed subsidiary of a GOC or candidate GOC, or a candidate GOC associate, or an associate subsidiary, with all necessary modifications and any modifications prescribed by regulation, as if it were— (a) a candidate GOC; or (b) a subsidiary of a candidate GOC; or (c) a candidate GOC associate; or (d) an associate subsidiary. (3) Also, a regulation may change the name of— (a) a candidate GOC, or a subsidiary or proposed subsidiary of a candidate GOC, if the entity or proposed entity is not registered as a corporation under the Corporations Act; or (b) a candidate GOC associate; or (c) an associate subsidiary. (4) A regulation under subsection (3)— (a) does not affect the legal personality of the entity whose name is changed; and (b) is effective even if the name being changed was given to the entity under another Act. (5) Unless a contrary intention appears, a reference in an Act or document to the entity by its former name is taken to be a reference to the entity by its new name. Part 6 First chief executive officers and senior executives of GOCs 68 Definition for pt 6 In this part— board of directors, of a candidate GOC, includes an interim board of directors of the candidate GOC. 69 Application of pt 6 This part applies if the responsible Ministers of a candidate GOC authorise the candidate GOC's board of directors to act for the part. 70 Appointment of GOC's first chief executive officer (1) The first chief executive officer of a GOC may be appointed under section 92 before the commencement of a regulation declaring the candidate GOC to be a GOC. (2) For acting under the section— (a) a reference in the section to the GOC's board is taken to be a reference to the candidate GOC's board of directors; and (b) a reference in the section to the shareholding Ministers is taken to be a reference to the responsible Ministers of the candidate GOC. 71 Appointment of GOC's first senior executives (1) The first senior executives of a GOC may be appointed under section 146 before the commencement of a regulation declaring the candidate GOC to be a GOC. (2) For acting under the section— (a) a reference in the section to the GOC's board is taken to be a reference to the candidate GOC's board of directors; and (b) a reference in the section to the shareholding Ministers is taken to be a reference to the responsible Ministers of the candidate GOC. Part 7 Candidate GOCs and candidate GOC associates becoming GOCs 72 Declaration of entity as GOC If the Governor in Council is satisfied that— (a) any corporatisation charter of a candidate GOC has been sufficiently implemented or the candidate GOC is otherwise ready to become a GOC; and (b) the candidate GOC complies with, or on becoming a GOC will comply with, section 75; the Governor in Council may, by regulation, declare that the candidate GOC is a GOC. 73 Declaration of candidate GOC associate as GOC (1) This section applies if a regulation under section 54 (Transfer of assets, liabilities etc. to government entity to become GOC or GOC subsidiary) makes provision for the transfer of assets and liabilities from a candidate GOC to its associate. (2) The Governor in Council may, by regulation, declare that the associate is a GOC if satisfied that— (a) any corporatisation charter of the candidate GOC has been sufficiently implemented or the candidate GOC would, apart from the regulation under section 54, be otherwise ready to become a GOC; and (b) the associate complies with, or on becoming a GOC will comply with, section 75. 74 Declaration does not affect legal personality etc. (1) The declaration of an entity as a GOC does not, of itself, affect— (a) the legal personality of the entity; or (b) its functions and powers. (2) Also, the declaration of an entity as a GOC— (a) does not place the entity or the State in breach of contract or confidence or otherwise make the entity or the State guilty of a civil wrong; and (b) does not make the entity or the State in breach of any instrument, including an instrument prohibiting, restricting or regulating the assignment or transfer of any right or liability or the disclosure of any information; and (c) is not taken to fulfil a condition— (i) that allows a person to terminate an instrument or obligation or modify the operation or effect of an instrument or obligation; or (ii) that requires any money to be paid before its stated maturity; and (d) does not release a surety or other obligee (in whole or part) from an obligation. Chapter 3 Government owned corporations (GOCs) Part 1 Basic requirements 75 GOC must be public company limited by shares A GOC must be a public company, and a company limited by shares, under the Corporations Act. Part 2 Application of Corporations Act 76 Application of Corporations Act to GOCs The Corporations Act applies to a GOC except so far as this Act otherwise provides. 77 GOC not exempt public authority A GOC is not an exempt public authority for the purposes of the Corporations Act. Part 3 Shares and shareholding Ministers 78 Shareholders of a GOC The shareholders of a GOC are the GOC Minister and the portfolio Minister of the GOC (the shareholding Ministers). 79 Shareholding Ministers must have equal number of voting shares and equal rights (1) Each shareholding Minister must at all times have an equal number of voting shares in the GOC. (2) Each shareholding Minister must also at all times be entitled to voting rights equal to those to which the other shareholding Minister is entitled. (3) However, each shareholding Minister may hold non-voting shares and need not hold an equal number of non-voting shares. 80 Shareholders hold shares for State etc. (1) The State is the owner of all shares in a GOC. (2) A GOC's shareholders hold their shares in the GOC on behalf of the State. 81 Transfer, issue etc. of shares (1) A GOC's shareholder may transfer shares in the GOC only to another Minister. (2) The Premier may execute a transfer of shares in a GOC or a GOC subsidiary for the purpose of giving effect to this Act. (3) If the Premier executes a transfer of shares in a GOC or a GOC subsidiary, the GOC or subsidiary must register the transfer and take any other action necessary to give effect to the transfer. (4) Subject to the other provisions of this part, this Act does not prevent a GOC or a GOC subsidiary from issuing further shares to its shareholders. 82 Shareholding Ministers must act jointly (1) If this Act authorises a GOC's shareholding Ministers to do an act, the shareholding Ministers may only do the act jointly. (2) If this Act requires the shareholding Ministers to do an act, the shareholding Ministers must do the act jointly. 83 Ministers not directors etc. (1) A GOC's shareholding Ministers are not to be treated as directors of the GOC or any subsidiary or proposed subsidiary of the GOC. (2) A Minister does not incur civil liability for an act or omission done or omitted to be done honestly and without negligence under, or for the purposes of, this Act in relation to a GOC or a subsidiary or proposed subsidiary of a GOC. (3) A liability that would, apart from subsection (2), attach to the Minister attaches instead to the State. (4) This section has effect despite the Corporations Act. 84 Resolutions without meetings (1) If the shareholding Ministers of the GOC sign a document containing a statement that they are in favour of a resolution set out in the document— (a) a resolution in those terms is taken to have been passed at a general meeting of the GOC held at the time at which, and on the day on which, the document is signed by the last shareholding Minister; and (b) the GOC is taken to have held a general meeting at that time on that day; and (c) the document is taken to be a minute of the meeting; and (d) any document that is attached to the first document, and is signed by the shareholding Ministers, is taken to have been laid before the GOC at the meeting; and (e) if the resolution deals with all matters that are required to be dealt with at an annual general meeting of the GOC—the GOC is taken to have held an annual general meeting. (2) Subsection (1) applies to a resolution that is authorised or required by the Corporations Act, or the GOC's constitution, to be passed at a general meeting, including a resolution— (a) appointing an officer or auditor; or (b) approving of, or agreeing to, anything. (3) For the purposes of subsection (1), 2 or more separate documents containing a statement in identical terms, each of which is signed by a shareholding Minister, are taken to constitute a single document. (4) This section has effect for the purposes of the Corporations Act and has that effect despite anything in that Act. (5) Subsection (4) does not limit any other effect that this section may have. (6) This section does not affect any rule of law relating to the effectiveness of the assent of members of a company given to a document or anything else otherwise than at a general meeting of the company. Part 4 Constitution 85 Constitution of GOC may be amended by shareholding Ministers (1) The shareholding Ministers of a GOC may amend the GOC's constitution. (2) Subsection (1) does not limit any other power to amend the constitution. 86 Shareholding Ministers of GOC may require amendment of subsidiary's constitution (1) The shareholding Ministers of a GOC may, by written notice, direct the board to amend the constitution of a subsidiary of the GOC. (2) The board must, as far as practicable, ensure that the direction is complied with. 87 Constitutions of GOC and its subsidiaries must not be inconsistent with Act or Corporations Act (1) The constitutions of a GOC and its subsidiaries must not be inconsistent with this Act or the Corporations Act. (2) However, if there is any inconsistency between this Act and the Corporations Act regarding the constitution of a GOC or a GOC subsidiary, this Act prevails to the extent of the inconsistency. (3) If there is any inconsistency between this Act and the constitution, this Act prevails to the extent of the inconsistency. (4) If there is any inconsistency between the Corporations Act and the constitution, then, subject to subsection (2), the Corporations Act prevails to the extent of the inconsistency. Part 5 Board of directors 88 Role of board The role of a GOC's board includes the following matters— (a) responsibility for the GOC's commercial policy and management; (b) ensuring that, as far as possible, the GOC achieves, and acts in accordance with, its statement of corporate intent and carries out the objectives outlined in its statement of corporate intent; (c) accounting to the GOC's shareholders for its performance as required by this Act and other laws applying to the GOC; (d) ensuring that the GOC otherwise performs its functions in a proper, effective and efficient way. 89 Composition of board (1) A GOC's board is to consist of the number of directors that are appointed by the Governor in Council. (2) In appointing a person as a director, the Governor in Council must have regard to the person's ability to make a contribution to the GOC's commercial performance and, if the GOC has a statement of corporate intent, the implementation of the statement. (3) Subsection (1) has effect despite— (a) the GOC's constitution; and (b) the Corporations Act. 90 Public service officers not eligible for appointment as directors (1) A public service officer is not eligible for appointment as a director of a GOC. (2) Subsection (1) has effect despite the Corporations Act. 91 First board of GOC (1) This section applies to candidate GOCs and candidate GOC associates. (2) For the appointment of the first board of the GOC, the Governor in Council may act under section 89 before the commencement of a regulation declaring the candidate GOC, or the candidate GOC associate, to be a GOC. (3) The appointment takes effect when the regulation commences. (4) This section has effect despite— (a) the GOC's constitution; and (b) the Corporations Act. Part 6 Chief executive officer 92 Appointment of chief executive officer A GOC's chief executive officer is to be appointed by the GOC's board with the prior written approval of the shareholding Ministers. 93 Appointment of chief executive officer—particular subsidiaries (1) This section applies to a GOC subsidiary that is not a prescribed GOC subsidiary. Note— Schedule 4 provides for the appointment of a chief executive officer for a prescribed GOC subsidiary. (2) The subsidiary's chief executive officer is to be appointed by the subsidiary's board with the prior written approval of the shareholding Ministers of each GOC that is a shareholder of the subsidiary. (3) Subsection (2) does not limit a provision of the subsidiary's constitution requiring the subsidiary's board to consult the board of a GOC that is a shareholder of the subsidiary before appointing the chief executive officer under the subsection. (4) In this section— prescribed GOC subsidiary means a GOC subsidiary prescribed under a regulation under section 155. Part 7 Corporate plan Division 1 General 94 GOC must have corporate plan Each GOC must have a corporate plan. 94A [Repealed] 95 Corporate plan to apply to subsidiaries If a GOC has subsidiaries, the GOC's corporate plan must apply to the GOC and its subsidiaries. 96 Guidelines in relation to corporate plans (1) The GOC Minister may issue guidelines about the form and content of corporate plans. (2) Every GOC must comply with the guidelines. (3) Guidelines under this section are subordinate legislation. Division 2 Preparation, agreement on and modification of corporate plan 97 Draft corporate plan (1) The board of a GOC must prepare, and submit to the shareholding Ministers for their agreement, a draft corporate plan— (a) within 1 month of becoming a GOC; and (b) not later than 2 months before the start of each subsequent financial year (a subsequent financial year). (2) The board and the shareholding Ministers must endeavour to reach agreement on the draft plan as soon as possible and, in the case of a draft corporate plan for a subsequent financial year, in any event not later than the start of the financial year. 98 Special procedures in relation to draft corporate plan (1) The shareholding Ministers may return the draft corporate plan to the board and request it to— (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 a matter of urgency. (3) If a draft corporate plan has not been agreed to by the shareholding Ministers within 2 months from the day on which the GOC becomes a GOC, the shareholding Ministers may, by written notice, direct the board— (a) to take specified steps in relation to the draft plan; or (b) to make specified modifications to the draft plan. (4) If, in the case of a subsequent financial year, a draft corporate plan has not been agreed to by the shareholding Ministers before the start of the financial year, the shareholding Ministers may, by written notice, direct the board— (a) to take specified steps in relation to the draft plan; or (b) to make specified modifications to the draft plan. (5) The board must immediately comply with a direction under subsection (3) or (4). (6) The shareholding Ministers must cause a copy of a direction to be published in the gazette within 21 days after it is given. 99 Corporate plan on agreement When a draft corporate plan of a GOC is agreed to by the shareholding Ministers, it becomes the GOC's corporate plan for the relevant financial year. 100 Corporate plan pending agreement (1) If a draft corporate plan has not been agreed to by the shareholding Ministers within 1 month from the day on which the GOC becomes a GOC, the draft corporate plan submitted, or last submitted, by the board to the shareholding Ministers before that time (with any modifications made by the board, whether before or after that time, at the direction of the shareholding Ministers) is taken to be the GOC's corporate plan until a draft corporate plan becomes the GOC's corporate plan under section 99 (Corporate plan on agreement). (2) If, in the case of a subsequent financial year, the shareholding Ministers of a GOC have not agreed to a draft corporate plan before the start of the financial year, the draft corporate plan submitted, or last submitted, by the board to the shareholding Ministers 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 shareholding Ministers) is taken to be the GOC's corporate plan until a draft corporate plan becomes the GOC's corporate plan under section 99. 101 Modifications of corporate plan (1) A GOC's corporate plan may be modified by its board with the agreement of the shareholding Ministers. (2) The shareholding Ministers may, by written notice, direct the board to modify the corporate plan. (3) The shareholding Ministers must cause a copy of the di