Tasmania: Government Business Enterprises Act 1995 (Tas)

Government Business Enterprises Act 1995 An Act to make provision in respect of the establishment, commercial operation and accountability of Government Business Enterprises, the relationship between Government Business Enterprises and the Government and the payment of financial returns to the State by Government Business Enterprises and for related purposes [Royal Assent 1 September 1995] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Government Business Enterprises Act 1995 . 2. Commencement This Act – (a) commences on 1 July 1995 if it receives the Royal Assent on or before that day; or (b) is taken to have commenced on 1 July 1995 if it receives the Royal Assent after that day. 3. Interpretation (1) In this Act, unless the contrary intention appears – accounting records includes – (a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry; and (b) such working papers and other documents as are necessary to explain the methods and calculations by which a Government Business Enterprise's financial statements are made up; Agency has the same meaning as in the State Service Act 2000 ; amend includes – (a) omit matter; and (b) insert or add matter; and (c) omit matter and substitute other matter; annual report means an annual report prepared under section 55 ; associated entity has the meaning given by section 3A ; audit committee means the audit committee established under section 16 (1) (a) ; Australian Accounting Standards means Statements of Accounting Standards issued jointly by the National Councils of the Australian Society of Certified Practising Accountants and The Institute of Chartered Accountants in Australia or their successors; beneficial interest includes a potential interest in property subject to a discretionary trust; Board means – (a) the Board of Directors of a Government Business Enterprise specified in Part 1 of Schedule 1 appointed under section 11 (2) ; or (b) the Board of Directors, within the meaning of section 11 (5) , of a Government Business Enterprise specified in Part 2 of Schedule 1 ; borrowing means any borrowing, loan, temporary accommodation, advance or other form of raising funds in relation to which the principal is repayable; chairperson means – (a) the chairperson of a Board of a Government Business Enterprise specified in Part 1 of Schedule 1 appointed under section 11 (2) ; or (b) the person appointed or otherwise established by or under the Portfolio Act as, or to act in the office of, chairperson of a Board of a Government Business Enterprise specified in Part 2 of Schedule 1 ; charge includes tariff, fee and premium; chief executive officer means the chief executive officer of a Government Business Enterprise appointed under section 18 (2) or as specified in section 18 (7) ; committee means the audit committee or another committee established under section 16 ; Commonwealth Tax Act means the Income Tax Assessment Act 1936 of the Commonwealth together with the Income Tax Assessment Act 1997 of the Commonwealth and any other enactments of the Commonwealth relating to income tax; community service obligation has the same meaning as in Part 9 ; comply with includes does not contravene; contract includes an agreement, arrangement, loan or other transaction; contravene includes fail to comply with; conversion day means – (a) in the case of a statutory authority specified in Schedule 1 as in force on 1 July 1995, that day; or (b) in any other case, the day on which a State service authority or independent employing authority becomes a Government Business Enterprise; corporate plan means the corporate plan approved under section 39 ; costing basis means the basis for determining the costs or estimated costs of community service obligations agreed under section 62 ; debenture has the same meaning as in the Corporations Act; director means – (a) the chairperson; and (b) in the case of a Government Business Enterprise specified in Part 1 of Schedule 1 , a person appointed as a director (other than as chairperson) under section 11 (2) ; and (c) in the case of a Government Business Enterprise specified in Part 2 of Schedule 1 , a person appointed or otherwise established by or under the Portfolio Act as, or to act in the office of, a member of the Government Business Enterprise or its governing authority (other than as chairperson); dividend means – (a) a dividend specified in a recommendation approved under section 84 (1) (a) ; or (b) a dividend which a Government Business Enterprise is directed to pay under section 84 (1) (c) ; or (c) a dividend specified in a notice referred to in section 84 (4) ; employee means a person – (a) employed by a Government Business Enterprise under section 21 (1) ; or (b) appointed or employed for the purposes of a Government Business Enterprise, as specified in section 21 (3) ; enactment means an Act, order or other instrument of a legislative character; financial accommodation means– (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 for financing but not for operating purposes; or (f) any other transaction or arrangement that the Treasurer's Instructions specify to be financial accommodation for the purposes of this Act; financial arrangement means any one or more of the following when entered into and performed in accordance with the Treasurer's Instructions: (a) a currency swap; (b) an interest rate swap; (c) a forward exchange rate agreement; (d) a forward interest rate agreement; (e) a futures contract, or futures option, within the meaning of the Corporations Act; (f) a currency option; (g) an interest rate option; (h) any other transaction or arrangement that the Treasurer's Instructions specify to be a financial arrangement for the purposes of this Act; financial statements means – (a) the financial statements prepared in respect of a Government Business Enterprise under section 52 ; and (b) the consolidated financial statements prepared in respect of a Government Business Enterprise and all of its subsidiaries under that section; financial year, in relation to a Government Business Enterprise or its subsidiary, means – (a) if the Portfolio Act or another Act specifies a period of 12 months in respect of which the Government Business Enterprise or subsidiary is required to maintain financial records, that period; or (b) if such a period is not specified by the Portfolio Act or another Act and the Treasurer approves a period of 12 months in respect of which the Government Business Enterprise or subsidiary is required to maintain financial records, that period; or (c) in every other case, a period of 12 months ending on 30 June in any year; function includes duty; Government Business Enterprise means a statutory authority specified in Schedule 1 ; Government department means an organ of the executive government of Tasmania including, in particular, a Government department within the meaning of the State Service Act 2000 ; guarantee fee means the fee payable under section 78 ; income tax equivalent means the income tax equivalent a Government Business Enterprise or subsidiary is liable to pay under section 68 ; indemnify includes indemnify indirectly through one or more interposed entities; independent employing authority means a statutory authority that – (a) is to become a Government Business Enterprise on the conversion day; and (b) immediately before that day, has the power to employ as members of its staff persons who are not State service employees; initial chief executive officer means a person who becomes a chief executive officer on the conversion day under section 91 ; initial director means a person who becomes a director on the conversion day under section 92 ; initial employee means a person who – (a) is taken to have been employed under section 21 (1) by a Government Business Enterprise by the operation of section 90 (1) ; or (b) is taken to have been employed pursuant to section 21 (3) by the operation of section 90 (2) ; interim dividend means – (a) an interim dividend specified in a recommendation approved under section 85 (3) (a) ; or (b) an interim dividend which a Government Business Enterprise is directed to pay under section 85 (3) (c) ; or (c) an interim dividend specified in a notice referred to in section 85 (6) ; interim report means – (a) a quarterly report under section 57 ; and (b) information provided to a Minister under section 58 ; investigator means a person authorised under section 102 (1) or (2) to undertake an investigation of a Government Business Enterprise or subsidiary; lease means – (a) any lease, licence, charter or hiring arrangement of any real or personal property; or (b) any arrangement under which a right to use, operate, manage or provide services in respect of any real or personal property is granted by the owner to another person; loss means the loss or deficit shown in the financial statements in respect of a financial year after – (a) any extraordinary items have been taken into account; and (b) provision has been made for any income tax equivalent payable; main undertaking means an undertaking or asset specified in a corporate plan to be a main undertaking; material personal interest has the meaning given by section 3B ; ministerial charter means the charter provided to a Government Business Enterprise under section 36 ; money includes negotiable instruments or securities of any kind for the payment of money; officer means – (a) a director; and (b) a chief executive officer; and (c) a person who is concerned with, or takes part in, the management of a Government Business Enterprise; partner means the person with whom a person is in a personal relationship, within the meaning of the Relationships Act 2003 ; pay includes pay indirectly through one or more interposed persons; Portfolio Act, in relation to a Government Business Enterprise, means the enactment by or under which that Government Business Enterprise is established together with any other enactment, other than this Act, which is expressed as being required to be incorporated and read as one with that enactment; Portfolio Minister means – (a) in relation to a Government Business Enterprise constituted by or under an enactment or part of an enactment, the Minister to whom the administration of that enactment or part is assigned; and (b) in relation to a Government Business Enterprise not constituted by or under an enactment, the Minister to whom the administration of the Government Business Enterprise is assigned; prescribed interest has the same meaning as in the Corporations Law ; prescribed rate means the rate determined from time to time by the Treasurer; regulations means regulations made and in force under this Act; relative means – (a) the spouse or partner of a person; and (b) the parent or remoter linear ancestor of a person; and (c) the child or remoter issue of a person; and (d) the brother or sister of a person; ruling means – (a) a ruling made by the Treasurer in the exercise of his or her powers obtained by the application of section 67 (2) or (3) ; and (b) a ruling made by the Treasurer under section 71 ; security includes inscribed stock, bonds, debenture stock, notes or any other document creating, evidencing or acknowledging indebtedness in respect of financial accommodation whether constituting a charge on property or not; sinking fund advances means loans and advances – (a) that were made before 1 May 1995 by the Treasurer to a State service authority or independent employing authority; and (b) in respect of which sinking fund contributions were payable to the National Debt Commission as in existence before that day; special dividend means a special dividend a Government Business Enterprise is directed to pay under section 86 ; State charge means any rate, tax, duty or other impost imposed by or under any enactment of the State; State service authority means a statutory authority that – (a) is to become a Government Business Enterprise on the conversion day; and (b) immediately before that day, has as members of its staff persons who are State service employees; statement of corporate intent has the meaning given by section 41 ; statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority, including a Government Business Enterprise; subsidiary has the meaning given by section 4 ; Treasurer's Instructions means instructions issued under section 114 . (2) The Treasurer may, by notice published in the Gazette, determine the prescribed rate for the purposes of this Act. (3) Subject to this Act, any request, direction, declaration, determination, approval, requirement, information, recommendation, deferral, waiver, notice, notification, advice, application, agreement, amendment, revocation or substitution made, given or done under this Act is to be made, given or done in writing. 3A. Associated entities (1) In relation to a director, each of the following persons is an associated entity if the director or a relative of the director has control over the person: (a) a body corporate; (b) a partnership or other unincorporated association of persons; (c) a majority of trustees of a trust. (2) For the purposes of determining whether the director has control over a person referred to in subsection (1) , the following matters may be taken into account: (a) whether the director or his or her relative is a shareholder in, a director or other officer of or a trustee of that person; (b) whether the director or his or her relative is a beneficiary in the trust of which that person is a trustee; (c) any other matter or relationship that is relevant. (3) For the purposes of determining whether the relative of a director has control over a person referred to in subsection (1) , the following matters may be taken into account: (a) whether the relative or his or her relative is a shareholder in, a director or other officer of or a trustee of that person; (b) whether the relative or his or her relative is a beneficiary in the trust of which that person is a trustee; (c) any other matter or relationship that is relevant. 3B. Material personal interest (1) In this Act, material personal interest, in respect of a director of a Government Business Enterprise, includes – (a) a direct or indirect interest; and (b) a pecuniary or non-pecuniary interest; and (c) the interest of a relative of the director; and (d) the interest of an associated entity; and (e) an interest in a corporation, within the meaning of the Corporations Act 2001 of the Commonwealth; and (f) the director's employment by a person with a direct or indirect interest in that Government Business Enterprise of which the director is a director; and (g) the holding by the director of an office where there arises or may arise a conflict between his or her duties in that office and his or her duties as director of that Government Business Enterprise; and (h) the holding by the director of the office of member in another statutory authority or in the governing authority of another statutory authority; and (i) any other interest that does, or may, give rise to a conflict of interest. (2) A director of a Government Business Enterprise does not have a material personal interest by reason only of the director also being a State Service employee or State Service officer. (3) A director of a Government Business Enterprise does not have a material personal interest by reason only of an interest in a contract with the Government Business Enterprise for a good or service ordinarily supplied by the Government Business Enterprise and supplied on the same terms as that good or service is ordinarily supplied to other persons in the same situation. 4. Subsidiaries (1) A body corporate is a subsidiary of a Government Business Enterprise if – (a) were the Government Business Enterprise and body corporate corporations under the Corporations Act, the body corporate would be a subsidiary of the Government Business Enterprise under that Act; or (b) the body corporate is declared by the Treasurer, by notice published in the Gazette, to be a subsidiary of the Government Business Enterprise. (2) A statutory authority that is not a body corporate is a subsidiary of a Government Business Enterprise if it is declared by the Treasurer, by notice published in the Gazette, to be a subsidiary of the Government Business Enterprise. (3) If a Government Business Enterprise is a subsidiary of another Government Business Enterprise, the subsidiary is taken not to be a Government Business Enterprise (but continues to be a subsidiary) for the purposes of section 57 and Parts 6 , 10 and 11 . 5. Relationship between this Act and Portfolio Act (1) The provisions of this Act are incorporated with, and are to be read as one Act with, the Portfolio Act. (2) If a provision of this Act is inconsistent with a provision of the Portfolio Act or any other Act that imposes or confers functions or powers on the Government Business Enterprise, the provision of this Act prevails and the provision of the Portfolio Act or other Act is, to the extent of the inconsistency, invalid except where the Portfolio Act or other Act expressly provides otherwise. PART 2 - Legal entity, objectives, functions and powers of Government Business Enterprise 6. Legal entity of Government Business Enterprise A Government Business Enterprise – (a) is a body corporate with perpetual succession; and (b) has a seal; and (c) may sue and be sued in its corporate name. 7. Principal objectives of Government Business Enterprise (1) The principal objectives of a Government Business Enterprise are – (a) to perform its functions and exercise its powers so as to be a successful business by – (i) operating in accordance with sound commercial practice and as efficiently as possible; and (ii) achieving a sustainable commercial rate of return that maximises value for the State in accordance with its corporate plan and having regard to the economic and social objectives of the State; and (b) to perform on behalf of the State its community service obligations in an efficient and effective manner; and (c) to perform any other objectives specified in the Portfolio Act. (2) On the request of the Portfolio Minister, the Treasurer may, by notice published in the Gazette, specify the economic and social objectives of the State relevant to the Government Business Enterprise specified in the notice. (3) On the request of the Portfolio Minister, the Treasurer may, by order, exempt the Government Business Enterprise specified in the order from the application of subsection (1) (a) (ii) . (4) The provisions of section 47 (3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 apply to an order under subsection (3) as if the order were regulations within the meaning of that Act. 8. Functions of Government Business Enterprise A Government Business Enterprise has the functions imposed by or under this Act, its Portfolio Act and any other Act. 9. Powers of Government Business Enterprise (1) A Government Business Enterprise has the following powers: (a) to acquire, hold, dispose of and otherwise deal with property; (b) to transfer any of its property, rights, liabilities and obligations (whether for valuable consideration or otherwise) to a subsidiary; (c) to enter into contracts; (d) to appoint agents and attorneys; (e) to act as agent for another person; (f) to form, and participate in the formation of, bodies corporate; (g) to participate in partnerships, trusts, joint ventures and arrangements for the sharing of profits; (h) to enter into a contract with another person for the performance or exercise of any of its functions or powers either jointly with that other person or by that other person; (i) to set charges, terms and conditions relating to work done, or services, goods or information supplied, by it except where the Portfolio Act provides otherwise; (j) to engage consultants and provide consultancy services; (k) to carry on any business which may conveniently be carried on in conjunction with the performance of its functions; (l) to do all other things it is authorised to do by or under this or any other Act; (m) to do all things necessary or convenient to be done in connection with, or incidental to, the performance and exercise of its functions and powers. (2) A Government Business Enterprise may perform and exercise its functions and powers in Australia and, if the Portfolio Minister approves, elsewhere. (3) A Government Business Enterprise may use and operate under one or more trading names approved by the Portfolio Minister. 10. Limitation on powers (1) A Government Business Enterprise must not transfer any property, right, liability or obligation to a subsidiary unless – (a) the subsidiary agrees to the proposed transfer; and (b) the Portfolio Minister and Treasurer have approved the proposed transfer. (2) A Government Business Enterprise must not form or participate in the formation of a body corporate which the Government Business Enterprise intends to be a subsidiary and which is to be incorporated under the Corporations Act unless the Portfolio Minister and Treasurer have approved the constitution that is to be the constitution of the subsidiary on its incorporation. (3) Except with the approval of the Portfolio Minister and Treasurer, a Government Business Enterprise must not– (a) acquire a number of shares in a body corporate sufficient to make it a subsidiary; or (b) dispose of a number of shares in a body corporate sufficient to cause it not to be a subsidiary; or (c) enter into a contract that results in a body corporate becoming or ceasing to be a subsidiary. (4) A Government Business Enterprise that is a shareholder in a company, within the meaning of the Corporations Act, that is its subsidiary must not approve or agree to an alteration to the constitution of the company except where the Government Business Enterprise has first obtained the approval of the Portfolio Minister and Treasurer to that alteration. (5) The Portfolio Minister and Treasurer must not approve– (a) any constitution that is inconsistent with this Act; and (b) an alteration to any constitution that would result in the constitution being inconsistent with this Act. (6) A Government Business Enterprise must not exercise its power to participate in a partnership, trust, joint venture or arrangement for the sharing of profits unless the Portfolio Minister, after consulting with the Treasurer, has approved the exercise of that power. (7) Except with the consent of the Portfolio Minister and Treasurer, a Government Business Enterprise must not– (a) dispose of a main undertaking; or (b) allow its subsidiary to dispose of a main undertaking. (8) A consent under subsection (7) is of no effect until it is approved by both Houses of Parliament. (9) A consent under subsection (7) is approved by a House of Parliament – (a) when the House passes a motion approving the consent; or (b) at the end of five sitting days after the consent was laid before the House if no notice of a motion to disapprove the consent is before the House; or (c) if such a notice is before the House at the end of that period, when the first of the following things occurs: (i) the notice is withdrawn; or (ii) the motion is negatived; or (iii) a further period of five sitting days ends. PART 2A - Notice of Transfer 10A. Notice of transfer (1) For the purposes of this section and Schedule 1A – asset includes any, and any part of any, property, business, operation and right; government business means a Government Business Enterprise, a State-owned company or a subsidiary of either of them; liability means any liability, duty or obligation whether actual, contingent or prospective, liquidated or unliquidated; notice of transfer means a notice of transfer referred to in subsection (2) ; property means – (a) any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property; and (b) money, documents and securities; and (c) shares in a subsidiary; and (d) any other rights; right means any right, power, privilege or immunity whether actual, contingent or prospective; State-owned company means a company established under the Corporations Act, the members of which are Ministers of the Crown and the beneficial ownership of which rests with the Crown; State tax means any of the following if imposed by any Act or law of Tasmania: (a) a fee, including an application fee and registration fee; (b) a tax, including a duty; (c) a charge; transferee means a government business to which any assets, rights or liabilities are transferred; transferor means a government business from which any assets, rights or liabilities are transferred. (2) The Treasurer may by notice of transfer, published in the Gazette, transfer any assets, rights or liabilities of a government business to another government business as specified in the notice. (3) A notice of transfer may be made on such terms and conditions as specified in the notice. (3A) A notice of transfer may only be made if the Treasurer has laid a copy of the notice of transfer before each House of Parliament and the notice of transfer has been approved by each House of Parliament. (3B) A notice of transfer is approved by a House of Parliament – (a) when the House passes a motion approving the notice of transfer; or (b) at the end of 5 sitting-days after the notice of transfer was laid before the House, if no notice of a motion to disapprove the notice of transfer is before the House; or (c) if a notice of a motion to disapprove the notice of transfer is before the House at the end of that period, when the first of the following things occurs: (i) the notice of a motion is withdrawn; (ii) the motion is negatived; (iii) a further period of 5 sitting-days ends. (4) Schedule 1A applies to the transfer of assets, rights and liabilities under this section. PART 3 - Board of Directors of Government Business Enterprise 11. Board (1) A Government Business Enterprise specified in Part 1 of Schedule 1 has a Board of Directors consisting of – (a) the chairperson of the Board; and (b) not less than 3 and not more than 8 other persons. (2) The chairperson and the directors referred to in subsection (1) (b) are appointed by the Governor on the joint recommendation of the Treasurer and Portfolio Minister. (3) The Treasurer and Portfolio Minister must not make a recommendation under subsection (2) unless – (a) they have considered any recommendations made by the Board of the Government Business Enterprise under subsection (3A) ; and (b) they are satisfied that the person recommended has the experience and skills necessary to enable the Government Business Enterprise to achieve its objectives. (3A) The Board may provide the Treasurer and Portfolio Minister with its recommendations, in writing, in respect of the appointment of a chairperson or another director. (4) Schedule 5 has effect with respect to the directors (including the chairperson) appointed under subsection (2) . (5) The Board of a Government Business Enterprise specified in Part 2 of Schedule 1 is the members of the Government Business Enterprise, or its governing authority, as appointed or constituted under the Portfolio Act. (6) A person may not hold the office of chief executive officer in any Government Business Enterprise in conjunction with the office of chairperson. (7) Schedule 6 has effect with respect to the meetings of any Board. 12. Role of Board A Board is responsible to the Portfolio Minister and Treasurer, jointly– (a) for ensuring that the business and affairs of the Government Business Enterprise are managed and conducted in a manner that is in accordance with sound commercial practice; and (b) for the performance by the Government Business Enterprise of its functions; and (c) for the achievement by the Government Business Enterprise of its objectives as specified in this Act, any other Act and the corporate plan of the Government Business Enterprise. 13. Duty to notify Treasurer and Portfolio Minister of adverse developments (1) A Board must notify the Treasurer and Portfolio Minister of any development which, in the opinion of the Board, may– (a) prevent or significantly affect the achievement of the financial performance objectives under the corporate plan by the Government Business Enterprise or its subsidiaries; or (b) significantly affect the financial viability or operating ability of the Government Business Enterprise, any subsidiary or any partnership, trust, joint venture or arrangement for the sharing of profits in which the Government Business Enterprise participates; or (c) otherwise significantly affect the Government Business Enterprise in any manner. (2) A notification is to be given immediately after the Board becomes aware of the development. 14. Powers of Board A Board has power to do all things necessary or convenient to be done in connection with the performance and exercise of its functions and powers under this or any other Act. 15. Delegation A Board may delegate any of its functions or powers under this or any other Act, other than this power of delegation, to any one or more of the following: (a) a director; (b) a chief executive officer; (c) a committee; (d) an employee; (e) a subsidiary. 16. Committees (1) A Board – (a) must establish an audit committee; and (b) may establish such other committees as it considers appropriate. (2) A committee – (a) must provide a Board with advice on any matter referred to it by the Board; and (b) must perform any functions, and may exercise any powers, delegated to it by the Board. (3) In addition to its functions under subsection (2) , the audit committee must provide a Board with advice on – (a) the internal audit function of the Government Business Enterprise; and (b) monitoring the Government Business Enterprise's systems of financial reporting and internal control; and (c) the resources necessary for the performance of the internal audit function of the Government Business Enterprise. (4) Schedule 7 has effect with respect to the members and meetings of a committee. 17. Acting directors (1) For the purposes of this section, a director is absent if he or she – (a) is absent from duty; or (b) is otherwise unable to perform the functions of the office of a director. (2) The Governor, on the recommendation of the Portfolio Minister, may appoint a person to act as a director of a Government Business Enterprise specified in Part 1 of Schedule 1 if the chairperson or a director referred to in section 11 (1) (b) is absent. (3) The Portfolio Minister must not make a recommendation under subsection (2) unless he or she has ensured that the person recommended has the experience and skills necessary to enable the Government Business Enterprise to achieve its objectives. (4) An acting director of a Government Business Enterprise specified in Part 2 of Schedule 1 is a person appointed or otherwise employed to act as a director of the Government Business Enterprise under the Portfolio Act. (5) The appointment or other employment of a person to act as a director if the chairperson is absent is not an appointment to act in the position of chairperson. (6) While a person appointed or otherwise employed to act as director is acting as a director that person is taken to be a director. (7) The appointment or other employment of a person to act as a director terminates when the absent chairperson or director resumes the performance of his or her functions as director. PART 4 - Staff of Government Business Enterprise Division 1 - Chief executive officer 18. Chief executive officer (1) . . . . . . . . (1A) Each Government Business Enterprise must have a chief executive officer. (2) The Premier, on the recommendation of the Portfolio Minister, may appoint a person, other than the chairperson, as chief executive officer of a Government Business Enterprise that is not an Agency. (2A) Except as provided by subsection (2D) , a person must not be recommended to the Premier for appointment as a chief executive officer of a Government Business Enterprise unless that person has been nominated for recommendation by the Board. (2B) If a person is to be appointed as chief executive officer of a Government Business Enterprise, the Portfolio Minister may require the Board, within the period specified in the requirement – (a) to nominate a person it considers suitable to hold the office of chief executive officer; and (b) to provide a recommendation in respect of the remuneration and allowances for the chief executive officer; and (c) to provide details of the performance appraisal system the Board intends to use to review the performance of the chief executive officer. (2C) If the Portfolio Minister does not consider the person nominated by the Board under subsection (2B)(a) to be suitable to hold the office of chief executive officer, the Portfolio Minister may, under that subsection, require the Board to provide the name of another person it considers suitable to hold that office. (2D) If the Board fails to nominate a person as required under subsection (2B) , the Portfolio Minister may recommend for the purposes of subsection (2) a person who the Portfolio Minister considers suitable but who has not been nominated by the Board. (3) A chief executive officer appointed under subsection (2) is entitled to be paid the remuneration and allowances specified in the instrument of appointment. (4) A chief executive officer appointed under subsection (2) holds that office for a term of not more than 5 years, and on the conditions specified in the instrument of appointment. (4A) A chief executive officer is an employee for the purposes of the Public Sector Superannuation Reform Act 2016 . (4B) . . . . . . . . (4BA) . . . . . . . . (4C) . . . . . . . . (4D) . . . . . . . . (4E) . . . . . . . . (5) The Premier, on the recommendation of the Portfolio Minister or the Board, may revoke the appointment of a chief executive officer made under subsection (2) – (a) if the instrument of appointment makes provision in respect of the early termination of the appointment, in accordance with the instrument of appointment; or (b) if the instrument of appointment does not make such provision, on the terms determined by the Premier. (6) The Portfolio Minister must not make a recommendation under subsection (5) unless he or she has first consulted with the Board. (6A) The Board must not make a recommendation under subsection (5) unless it has first consulted with the Portfolio Minister. (7) The office of chief executive officer of a Government Business Enterprise that is an Agency is taken to be an office created under section 29 of the State Service Act 2000 . (8) . . . . . . . . (9) A chief executive officer must not engage in paid employment outside the duties of the office unless he or she is allowed to do so by the instrument of appointment or contract of employment. (10) The appointment or employment of a person as chief executive officer is not invalid merely because of a defect or irregularity in relation to the appointment or contract of employment. 19. Role of chief executive officer (1) A chief executive officer is responsible to the Board for the general administration and management of the Government Business Enterprise. (2) A chief executive officer – (a) must perform any functions, and may exercise any powers, delegated to the chief executive officer by the Board; and (b) must perform any other functions imposed on, and may exercise any other powers granted to, him or her by this or any other Act. 20. Acting chief executive officer (1) For the purposes of this section, a chief executive officer is absent if he or she – (a) is absent from duty; or (b) is otherwise unable to perform the functions of the office of Chief Executive Officer; or (c) has died, resigned, been removed from office or had an order under section 29 (3) (a) made against him or her and a new chief executive officer has not been appointed. (2) The Portfolio Minister may appoint a person who is eligible to be appointed as chief executive officer to act as chief executive officer during any or every period during which the chief executive officer is absent. (3) An appointment is for such term, not exceeding 6 months, as is specified in the instrument of appointment. (4) A chairperson is not ineligible to be appointed only because he or she is the chairperson. (5) While a person appointed under subsection (2) is acting as chief executive officer that person is taken to be the chief executive officer. (6) Section 18 (3) , (4) , (5) , (9) and (10) applies in relation to the appointment of an acting chief executive officer as if it were an appointment of a chief executive officer. 20A. Effect of chief executive officer ceasing to be chief executive officer (1) If a person holds both the office of chief executive officer of a Government Business Enterprise and the office of director in that Government Business Enterprise, on the termination of his or her appointment as chief executive officer – (a) his or her appointment as director is revoked; and (b) any appointment of that person as director in a subsidiary of that Government Business Enterprise is revoked; and (c) any membership of that person in any committee created by the Board or other managing authority of that Government Business Enterprise or subsidiary ceases. (2) Subsection (1) does not affect the eligibility of the person to be reappointed to an office referred to in that subsection. 20B. Annual performance review (1) The Board is to conduct, in respect of each financial year, a review of the performance of the chief executive officer during that financial year. (2) The review of the performance of the chief executive officer is to be completed not later than 90 days after the end of the financial year in respect of which it is conducted. (3) The Board is to provide the Portfolio Minister with a copy of its findings in the review of the performance of the chief executive officer within 14 days after completing the review. Division 2 - Other staff 21. Staff (1) A Government Business Enterprise that is not an Agency may employ such persons as it considers necessary for the performance of its functions. (2) The State Service Act 2000 does not apply in relation to employees employed under subsection (1) . (3) The employees of a Government Business Enterprise that is an Agency are to be appointed or employed subject to and in accordance with the State Service Act 2000 . Division 3 - Miscellaneous matters relating to staff 22. Superannuation (1) A Government Business Enterprise must not make to a superannuation scheme a contribution in respect of an employee that is in excess of the rate specified in section 21(3) of the Public Sector Superannuation Reform Act 2016 . (1A) . . . . . . . . (2) . . . . . . . . (3) . . . . . . . . (4) A Government Business Enterprise must not establish a superannuation scheme after the commencement day specified in the Public Sector Superannuation Reform Act 1999 . (5) A Government Business Enterprise must comply with any instruction relating to superannuation given by the Minister responsible for the administration of the Public Sector Superannuation Reform Act 2016 . 23. Long Service Leave (State Employees) Act 1994 does not apply Subject to this Act, the Long Service Leave (State Employees) Act 1994 does not apply in relation to a Government Business Enterprise that is not an Agency, its chief executive officer or its employees. PART 5 - Powers and duties of, offences by and indemnification of directors and staff 23A. Power of former director to access records (1) In this section, former director means a person who ceased to be a director within the period of 7 years immediately preceding the relevant time. (2) A former director of a Government Business Enterprise may inspect and make copies of the records of the Government Business Enterprise, including its accounting records, financial statements and interim reports, at any reasonable time for the purpose of a legal proceeding – (a) to which the former director is a party; or (b) that the former director proposes in good faith to bring; or (c) that the former director has reason to believe will be brought against him or her. (3) The Government Business Enterprise must allow a former director to exercise his or her powers under this section to inspect and make copies of records. Penalty: Fine not exceeding 500 penalty units. (4) This section does not limit any right of access to the records of a Government Business Enterprise that a former director has apart from this section. 23B. Power of director to access records (1) A director may inspect and make copies of the records of the Government Business Enterprise, including its accounting records, financial statements and interim reports, at any reasonable time. (2) A director or officer must not prevent a director from exercising his or her powers under this section to inspect and make copies of records. Penalty: Fine not exceeding 50 penalty units. 24. Duties of officers and employees (1) In this section – business judgment means any decision to take or not take action in respect of a matter relevant to the business operations of the Government Business Enterprise; former employee means a person who ceased to be an employee within the period of 7 years immediately preceding the relevant time; former officer means a person who ceased to be an officer within the period of 7 years immediately preceding the relevant time. (2) An officer of a Government Business Enterprise must perform and exercise the functions and powers of his or her office in that Government Business Enterprise – (a) in good faith in the best interests of the Government Business Enterprise; and (b) for a proper purpose. Penalty: Fine not exceeding 2 000 penalty units or a term of imprisonment not exceeding 5 years, or both. (3) An officer of a Government Business Enterprise must exercise his or her powers and perform his or her functions with the degree of care and diligence that a reasonable person would exercise if he or she – (a) were an officer of a Government Business Enterprise in the circumstances of the Government Business Enterprise; and (b) occupied the office held by, and had the same responsibilities within the Government Business Enterprise as, the officer. Penalty: Fine not exceeding 2 000 penalty units or a term of imprisonment not exceeding 5 years, or both. (4) An officer of a Government Business Enterprise who makes a business judgment is taken to meet the requirements of subsection (3) , and his or her equivalent duties at common law and in equity, in respect of the judgment if the officer – (a) makes the judgment in good faith for a proper purpose; and (b) does not have a material personal interest in the subject matter of the judgment; and (c) informs himself or herself about the subject matter of the judgment to the extent he or she reasonably believes to be appropriate; and (d) rationally believes that the judgment is in the best interests of the Government Business Enterprise. (5) For the purposes of subsection (4)(d) , the belief of an officer of a Government Business Enterprise that a business judgment is in the best interests of the Government Business Enterprise is rational unless the belief is one that no reasonable person in the position of the officer would hold. (6) An officer, employee, former officer or former employee of a Government Business Enterprise must not make improper use, in Tasmania or elsewhere, of information acquired because of his or her office or employment in the Government Business Enterprise – (a) to gain, directly or indirectly, an advantage for himself or herself or another person; or (b) to cause damage to the Government Business Enterprise or any of its subsidiaries. Penalty: Fine not exceeding 2 000 penalty units or a term of imprisonment not exceeding 5 years, or both. (7) An officer or employee must not make improper use, in Tasmania or elsewhere, of his or her position as an officer or employee of a Government Business Enterprise – (a) to gain, directly or indirectly, an advantage for himself or herself or another person; or (b) to cause damage to the Government Business Enterprise or any of its subsidiaries. Penalty: Fine not exceeding 2 000 penalty units or a term of imprisonment not exceeding 5 years, or both. 25. Duty to prevent insolvent trading (1) A director must prevent a Government Business Enterprise from incurring a debt if – (a) the Government Business Enterprise is insolvent at that time or will become insolvent by incurring at that time the debt or debts which include that debt; and (b) at that time there are reasonable grounds for suspecting that the Government Business Enterprise is insolvent or would become insolvent by incurring the debt or those debts; and (c) the director is aware of those grounds or a reasonable person in the position of director would be aware of those grounds. (2) A director is guilty of an offence and liable, on conviction, to a penalty of a fine not exceeding 2 000 penalty units or a term of imprisonment not exceeding 5 years, or both, if he or she contravenes subsection (1) knowingly, intentionally or recklessly and – (a) dishonestly and intending to gain, directly or indirectly, an advantage for himself or herself or another person; or (b) intending to deceive or defraud any person. (3) It is a defence for an offence against subsection (2) or for a contravention of subsection (1) in proceedings under section 29 if it is proved – (a) that, at the time the debt was incurred, the director – (i) had reasonable grounds to believe and did believe that a competent and reliable person was responsible for providing the director with adequate information as to whether the Government Business Enterprise was solvent; and (ii) had reasonable grounds to believe and did believe that the person referred to in subparagraph (i) was fulfilling the responsibility referred to in that subparagraph; and (iii) expected, on the basis of information provided by the person referred to in subparagraph (i) , that the Government Business Enterprise was solvent at that time and would remain solvent even if it incurred the debt and any other debts that it incurred at that time; or (b) that, at the time when the debt was incurred, the director had other reasonable grounds to expect, and did expect, that the Government Business Enterprise was solvent and would remain solvent even if it incurred the debt and any other debts that it incurred at that time; or (c) that the director took all reasonable steps to prevent the Government Business Enterprise from incurring the debt; or (d) that the director did not take part at the time in the Government Business Enterprise's management because of illness or for some other good cause; or (e) that the director informed the Portfolio Minister and Treasurer, before the debt was incurred, that the Government Business Enterprise was insolvent or would become insolvent if the debt or the debt and other debts were incurred; or (f) that the debt was incurred as the direct result of a direction given under this Act to the director or the Government Business Enterprise by the Portfolio Minister and Treasurer. 26. False or misleading information (1) An officer must not – (a) make a statement concerning the affairs of the Government Business Enterprise or a subsidiary to a director, the Treasurer, the Portfolio Minister or the Auditor-General that the officer knows is false or misleading in a material particular; or (b) omit from a statement concerning the affairs of the Government Business Enterprise or a subsidiary made to a director, the Treasurer, the Portfolio Minister or the Auditor-General anything without which the statement is, to the officer's knowledge, misleading in a material particular. Penalty: Fine not exceeding 50 penalty units or a term of imprisonment not exceeding 2 years, or both. (2) A complaint against a person for an offence against subsection (1) (a) or (b) is sufficient if it states that the information given was false or misleading to the person's knowledge. (3) An officer must not give to a director, the Treasurer, the Portfolio Minister or the Auditor-General a document containing information that the officer knows is false, misleading or incomplete in a material particular without– (a) indicating to the recipient that the document is false, misleading or incomplete and the respect in which the document is false, misleading or incomplete; and (b) giving the correct information to the recipient if the officer has, or can reasonably obtain, the correct information. Penalty: Fine not exceeding 25 penalty units or a term of imprisonment not exceeding 1 year, or both. 27. Reliance on information or advice If – (a) an officer of a Government Business Enterprise relies on information, or professional or expert advice, given or prepared by – (i) an employee of the Government Business Enterprise who the officer believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or (ii) a professional adviser or expert in relation to matters that the officer believes on reasonable grounds to be within the person's professional or expert competence; or (iii) another officer in relation to matters within the officer's authority; or (iv) a committee of officers on which the officer did not serve in relation to matters within the committee's authority; and (b) the reliance was made – (i) in good faith; and (ii) after making an independent assessment of the information or advice, having regard to the officer's knowledge of the Government Business Enterprise and the complexity of the structure and operations of the Government Business Enterprise; and (c) the reasonableness of the officer's reliance on the information or advice arises in proceedings brought to determine whether an officer has performed a duty under this Act or an equivalent general law duty – the officer's reliance on the information or advice is taken to be reasonable unless the contrary is proved. 28. Director to disclose material personal interest (1) A director who has or may have a material personal interest in a matter that relates to the affairs of the Government Business Enterprise must give the other directors notice of the interest except where – (a) the interest – (i) arises in relation to the director's remuneration as a director of the Government Business Enterprise; or (ii) relates to a contract that insures, or would insure, the director against liabilities the director incurs as an officer of the Government Business Enterprise (but only if the contract does not make the Government Business Enterprise or a related body the insurer); or (iii) relates to any payment by the Government Business Enterprise or a related body in respect of an indemnity permitted under section 35 ; or (iv) is in a contract, or proposed contract, with or for the benefit of, or on behalf of, a related body and arises because the director is a director of the related body; or (v) is a beneficial interest in shares in a public company, within the meaning of the Corporations Act 2001 of the Commonwealth, and the total number of shares in which the director has a beneficial interest does not exceed 5% of the total number of shares issued by the company; or (b) all of the following conditions are satisfied: (i) the director has already given notice of the nature and extent of the interest and its relation to the affairs of the Government Business Enterprise to all directors under this subsection; (ii) if after the time when notice of the nature and extent of the interest and its relation to the affairs of the Government Business Enterprise under this subsection was given a person who was not a director of the Government Business Enterprise at that time is appointed as a director, that notice is given to the new director; (iii) the nature or extent of the interest has not materially increased above that disclosed in the notice; or (c) the director has given a standing notice of the nature and extent of the interest under section 28B and the notice is still effective in relation to the interest. Penalty: Fine not exceeding 500 penalty units. (2) For the purposes of subsection (1) , a body is a related body in respect of a Government Business Enterprise if – (a) the body is a subsidiary of the Government Business Enterprise; or (b) the Government Business Enterprise is the body's subsidiary; or (c) the body and the Government Business Enterprise are both subsidiaries of another Government Business Enterprise. (3) The notice of a director's material personal interest in a matter that relates to the affairs of the Government Business Enterprise must – (a) include details of – (i) the nature and extent of the interest; and (ii) the relation of the interest to the affairs of the Government Business Enterprise; and (b) be given at a meeting of the Board as soon as practicable after the director becomes aware of his or her interest in the matter. (4) The details of the notice of a director's material personal interest in a matter that relates to the affairs of the Government Business Enterprise must be – (a) recorded in the minutes of the meeting at which the notice is given; and (b) provided to the Portfolio Minister and Treasurer. (5) A contravention of subsection (1) by a director does not affect the validity of an act or proceeding of the Board or of any person (including that director) acting pursuant to any direction of the Board. 28A. Board may declare material personal interest (1) If a Board is of the opinion that a director has a material personal interest in a matter that relates to the affairs of the Government Business Enterprise, it may pass a resolution declaring – (a) that the director has such an interest; and (b) the nature and extent of the interest; and (c) the relation of the interest to the affairs of the Government Business Enterprise. (2) If a declaration is made under subsection (1) , the director declared to have a material personal interest is taken to have that interest. (3) The details of a declaration made under subsection (1) must be provided to the Portfolio Minister and Treasurer. (4) The making of a declaration under subsection (1) does not preclude the taking of proceedings for an offence against section 28(1) in respect of the failure of the director to give notice of the material personal interest. 28B. Standing notice of director's interest (1) A director who has an interest, whether direct or indirect, in a matter may give the other directors of the Government Business Enterprise standing notice of the nature and extent of the interest. (2) The standing notice may be given at any time and whether or not the matter relates to the affairs of the Government Business Enterprise at the time the notice is given. (3) The standing notice must – (a) include details of the nature and extent of the interest; and (b) be given – (i) at a meeting of the Board, either in writing or orally; or (ii) to the other directors individually in writing. (4) Standing notice given to the directors individually – (a) must be tabled at the next meeting of the Board after it has been given; and (b) is given when it has been given to every director. (5) The details of the standing notice given at or tabled at a meeting of the Board must be – (a) recorded in the minutes of the meeting; and (b) provided to the Portfolio Minister and Treasurer. (6) A standing notice – (a) takes effect as soon as it is given; and (b) ceases to have effect if a person who was not a director of the Government Business Enterprise at the time when the notice was given is appointed as a director. (7) A standing notice that has ceased to have effect under subsection (6) recommences to have effect if it is given to the new director referred to in that subsection. (8) A standing notice ceases to have effect in relation to a particular interest if the nature or extent of the interest materially increases above that disclosed in the notice. 28C. Restriction on director's participation in case of material personal interest (1) If a director has a material personal interest in a matter being considered at a meeting of the Board, the director must not, except as allowed by the Board under subsection (4) – (a) be present while the matter is being considered; and (b) vote on the matter. (2) If – (a) a director has a material personal interest in a contract that the Government Business Enterprise has with a person; and (b) either – (i) the director, in compliance with subsection (1) , was not present while the Board considered whether to enter into the contract and did not vote on the matter; or (ii) the director was allowed under subsection (4) to be present while the Board considered whether to enter into the contract and to vote on the matter – the Government Business Enterprise, by reason of the director holding that interest, cannot avoid the contract and the director is not liable to account to the Government Business Enterprise for any profits derived from that interest. (3) If –