Macquarie Point Development Corporation Act 2012 (Tas)

Macquarie Point Development Corporation Act 2012 An Act to establish a corporation for the purpose of undertaking the remediation of certain land at Macquarie Point, Hobart, in accordance with an Intergovernmental Agreement dated 22 June 2012 entered into by the Commonwealth of Australia and the State of Tasmania, and for the purpose of facilitating, undertaking and managing the redevelopment of that land, and for other purposes [Royal Assent 11 December 2012] 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 Macquarie Point Development Corporation Act 2012 . 2. Commencement This Act commences on the day on which this Act receives the Royal Assent. 3. Interpretation (1) In this Act, unless the contrary intention appears – Agency has the same meaning as in the State Service Act 2000 ; Board means the board of directors of the Corporation established under section 9 ; Brooke Street pier means the pier and associated wharf infrastructure located in Sullivans Cove, Hobart, and known as "Brooke Street Pier"; chief executive officer means the chief executive officer of the Corporation appointed under section 15 ; Commission means the Tasmanian Planning Commission established under the Tasmanian Planning Commission Act 1997 ; corporate plan means a corporate plan referred to in section 38 ; Corporation means the Macquarie Point Development Corporation established by section 5 ; director means a person appointed as a director of the Board in accordance with this Act; employee means a person appointed or employed pursuant to section 19 ; financial statements means the financial statements referred to in section 49 ; Intergovernmental Agreement means the agreement, dated 22 June 2012, entered into by the Commonwealth of Australia and the State of Tasmania concerning the remediation of the Macquarie Point land and the redevelopment of the Brooke Street pier; Macquarie Point land means the land at Macquarie Point, Hobart, comprised in Tasmanian folio of the Register Volume 113521 Folio 1 registered under the Land Titles Act 1980 ; officer means – (a) a director; and (b) the chief executive officer; and (c) a person who is concerned with, or takes part in, the management of the Corporation; partner, in relation to a person, means a person with whom the person is in a personal relationship, within the meaning of the Relationships Act 2003 ; Planning Minister means the Minister to whom the administration of the Land Use Planning and Approvals Act 1993 is assigned; planning scheme has the same meaning as in the Land Use Planning and Approvals Act 1993 ; Register means the register of title to land referred to in section 33 of the Land Titles Act 1980 ; relative, in relation to a person, means – (a) the spouse or partner of the person; and (b) a parent or remoter linear ancestor of the person; and (c) a child or remoter issue of the person; and (d) a brother or sister of the person; relevant planning scheme means the planning scheme that, under the Land Use Planning and Approvals Act 1993 , applies from time to time to the site; relevant planning scheme planning authority means the planning authority, within the meaning of the Land Use Planning and Approvals Act 1993 , for any part of the land that comprises the site; relevant statutory authority means – (a) the Corporation within the meaning of the Water and Sewerage Corporation Act 2012 ; and (b) any company established under the Port Companies Act 1997 ; and (c) a person, or body, established under an Act, that is prescribed for the purposes of this definition; site means – (a) the Macquarie Point land; and (b) any Crown land, in proximity to the Macquarie Point land, that is transferred by the Minister to the Corporation for the purposes of this Act; and (c) any land, in proximity to the Macquarie Point land, purchased by the Corporation for the purposes of this Act with the written approval of the Minister; site master plan means the site master plan prepared under section 37 ; subsidiary has the same meaning as in the Corporations Act. (2) A body corporate is a subsidiary of the Corporation if, were the Corporation and body corporate corporations under the Corporations Act, the body corporate would be a subsidiary of the Corporation under that Act. 4. Material personal interest (1) In this Act – material personal interest in respect of a director of the Corporation 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; and (f) the director's employment by a person with a direct or indirect interest in the Corporation; 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 a director of the Corporation; and (h) the holding by the director of the office of a 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 the Corporation 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 the Corporation does not have a material personal interest by reason only of an interest in a contract with the Corporation for a good or service ordinarily supplied by the Corporation and supplied on the same terms as that good or service is ordinarily supplied to other persons in the same situation. (4) 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. (5) For the purposes of determining whether the director has control over a person referred to in subsection (4) , 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, the other person; (b) whether the director or his or her relative is a beneficiary in the trust of which the other person is a trustee; (c) any other matter or relationship that is relevant. (6) For the purposes of determining whether the relative of a director has control over a person referred to in subsection (4) , 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. PART 2 - Macquarie Point Development Corporation Division 1 - Establishment of Macquarie Point Development Corporation 5. Establishment of Macquarie Point Development Corporation (1) The Macquarie Point Development Corporation is established. (2) The Corporation – (a) is a body corporate with perpetual succession; and (b) has a seal; and (c) may sue and be sued in its corporate name; and (d) is an instrumentality of the Crown. (3) The Corporation's seal is to be kept and used as authorised by the Board. (4) All courts and persons acting judicially must take judicial notice of the imprint of the Corporation's seal on a document and presume that it was duly sealed by the Corporation. 6. Principal objectives of Corporation The principal objectives of the Corporation are – (a) to plan, facilitate and manage the remediation of the Macquarie Point land in accordance with the Intergovernmental Agreement; and (b) to plan, facilitate and manage the redevelopment of the site so as to ensure that the site – (i) is redeveloped as a vibrant and active area, with a mix of uses, that connects with and complements adjacent areas within Hobart; and (ii) encourages inner-city living; and (iia) encourages pedestrian and bicycle traffic; and (iib) allows for public transport; and (iic) provides for public open space; and (iii) is redeveloped so as to deliver sustainable social and economic benefits to Hobart; and (iv) is redeveloped in accordance with sound planning, urban design and environmental principles; and (ba) to plan, facilitate and manage temporary and longer-term use of the site; and (c) to the extent practicable, to make a profit from carrying out its functions. 7. Functions of Corporation The Corporation has the following functions: (a) to plan, undertake, manage, or arrange for, the remediation of the site so that the site can be redeveloped; (b) to investigate options for redevelopment of the site and prepare and implement strategies for ensuring the redevelopment of the site; (c) to redevelop and maintain, or ensure the redevelopment and maintenance of – (i) public open space on the site; and (ii) a corridor allowing transit through the site by means of public transport and pedestrian and bicycle traffic, so as to enable the connection of the site with areas adjacent to the site; and (iii) such other corridors, to allow transit through the site by means of other forms of transport, as the Corporation or the Minister considers desirable; (ca) to encourage and provide, or ensure the encouragement and provision of, appropriate temporary and longer-term use of the site; (d) to consult with the Tasmanian community, and those persons or bodies whom the Corporation considers to have an interest in relation to the redevelopment of the site, in relation to options for the redevelopment of the site; (e) to advise the Minister in relation to the redevelopment of the site and other areas of land; (f) to advise the Minister as to any legislation that may be required to undertake or facilitate the redevelopment of the site; (g) to undertake, manage or facilitate the redevelopment of the site consistent with the Corporation's objectives and any site master plan; (h) to consider and advise the Minister in relation to options for the redevelopment or replacement of the Brooke Street pier; (i) subject to written approval by the Minister – (i) to undertake, manage or facilitate the redevelopment of the Brooke Street pier or its replacement, whether or not in the same location; and (ii) to provide financial assistance to other persons in connection with the redevelopment of the Brooke Street pier or its replacement, whether or not in the same location; (j) any other function of the Corporation under this or any other Act. 8. Powers of Corporation (1) The Corporation has the following powers: (a) subject to subsection (3) , to acquire, hold, dispose of and otherwise deal with property; (b) to enter into contracts; (c) to appoint agents and attorneys; (d) to engage consultants; (e) to do anything necessary or convenient in relation to the performance of its functions. (2) The Corporation also has the following powers that may only be exercised by the Corporation with the written approval of the Minister: (a) to acquire, conduct, participate in, or dispose of, any business undertaking related to the site or the Brooke Street pier; (b) to form, or participate in the formation of, a company; (c) to participate in a trust; (d) to participate in any or all of the following arrangements for the purpose of the sharing of profits: (i) a joint venture; (ii) a partnership; (iii) any other arrangement. (3) The Corporation must not, without the written approval of the Minister – (a) lease or license land held by the Corporation for any term exceeding 5 years; or (b) purchase, gift or sell any estate or interest in land. (4) Subject to subsection (5) , the Corporation must not carry out any works on the Macquarie Point land until that land is transferred by the Minister to the Corporation in accordance with section 53 . (5) Subsection (4) does not prevent the Corporation from undertaking works on any part of the Macquarie Point land that is leased by the Corporation from the Minister administering the Crown Lands Act 1976 or from a tenant of that Minister. Division 2 - Board of Corporation 9. Board (1) The Corporation has a board of directors consisting of – (a) the chairperson of the Board; and (b) the chief executive officer; and (c) not less than 3, and not more than 6, other persons. (2) The chairperson and the other directors, other than the chief executive officer, are appointed by the Governor on the recommendation of the Minister. (3) In making a recommendation under subsection (2) , the Minister is to have regard to – (a) the need for the chairperson, chief executive officer and other directors together to have the necessary knowledge and skills to achieve the principal objectives of the Corporation; and (b) if the Minister has called for expressions of interest for persons to be appointed to the Board, any expressions of interest received; and (c) the desirability of having as directors both men and women. (4) A person may not hold the office of chief executive officer in the Corporation in conjunction with the office of chairperson. (5) Schedule 1 has effect with respect to the directors. (6) Schedule 2 has effect with respect to meetings of the Board. 10. Responsibilities (1) The Board is responsible to the Minister for – (a) the performance of the functions of the Corporation; and (b) the achievement of the Corporation's principal objectives; and (c) ensuring that the site is redeveloped in accordance with the site master plan; and (d) ensuring that the business and affairs of the Corporation are managed and conducted – (i) in accordance with the principal objectives of the Corporation; and (ii) in accordance with sound business practice; and (iii) in a manner that is consistent with any directions given by the Minister under section 36 ; and (iv) in a manner consistent with any corporate plan approved by the Minister under section 38 . (2) The Board has the power to do anything necessary or convenient in relation to its responsibilities under this Act. 11. Delegation by Board The Board may delegate any of its powers or responsibilities, other than this power of delegation. 12. Committees (1) The Board – (a) must establish an audit committee; and (b) may establish such other committees as it considers appropriate. (2) A committee – (a) must provide the 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 the Board with advice on – (a) the internal audit function of the Corporation; and (b) monitoring the Corporation's systems of financial reporting and internal control; and (c) the resources necessary for the performance of the internal audit function of the Corporation. (4) Schedule 3 has effect with respect to the members and meetings of a committee. 13. 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 Minister, may appoint a person to act as a director of the Corporation if the chairperson or a director referred to in section 9(1)(c) is absent. (3) The 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 act as a director of the Corporation. (4) 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. (5) While a person appointed or otherwise employed to act as a director is acting as a director that person is taken to be a director. (6) 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. Division 3 - Assistance and facilities 14. Assistance and facilities (1) The Corporation may arrange with one or more of the following persons to provide assistance and facilities to it to enable it to perform and exercise its functions and powers: (a) the Secretary of the Department; (b) another Head of a State Service Agency; (c) any other person if the Minister approves it. (2) All expenses associated with the use by the Corporation of the assistance and facilities provided under subsection (1) are to be met by the Corporation unless otherwise agreed with – (a) the Secretary of the Department, in relation to assistance and facilities provided by the Secretary of the Department; or (b) another Head of a State Service Agency, in relation to assistance and facilities provided by that Head of Agency; or (c) any other person approved by the Minister, in relation to assistance and facilities provided by that person. PART 3 - Staff of Corporation 15. Chief executive officer (1) Subject to and in accordance with the State Service Act 2000 , a chief executive officer of the Corporation is to be appointed. (2) . . . . . . . . 16. Responsibilities of chief executive officer (1) The chief executive officer is responsible to the Board for the general administration and management of the Corporation. (2) The chief executive officer – (a) must carry out any responsibilities, and may exercise any powers, delegated by the Board; and (b) must perform any functions or carry out any responsibilities imposed by, and may exercise any other powers granted by, this or any other Act. 17. Delegation by chief executive officer The chief executive officer may delegate any of his or her responsibilities, functions or powers, other than this power of delegation. 18. Effect of chief executive officer ceasing to be chief executive officer (1) If a person holds the position of chief executive officer and the office of director, 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 the Corporation is revoked; and (c) any membership of that person of any committee created by the Board 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. 19. Employees Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purposes of the Corporation. PART 4 - Powers and Duties of, Offences by and Indemnification of Directors and Staff 20. 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 the Corporation may inspect and make copies of the records of the Corporation, 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 Corporation 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 the Corporation that a former director has apart from this section. 21. Power of director to access records (1) A director may inspect and make copies of the records of the Corporation, 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. 22. 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 affairs of the Corporation; 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 the Corporation must perform and exercise the functions and powers of his or her office in the Corporation – (a) in good faith in the best interests of the Corporation; 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 the Corporation 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 corporation in the circumstances of the Corporation; and (b) occupied the office held by, and had the same responsibilities within the Corporation 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 the Corporation 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 Corporation. (5) For the purposes of subsection (4)(d) , the belief of an officer of the Corporation that a business judgment is in the best interests of the Corporation 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 the Corporation must not make improper use, in Tasmania or elsewhere, of information acquired because of his or her office or employment in the Corporation – (a) to gain, directly or indirectly, an advantage for himself or herself or another person; or (b) to cause damage to the Corporation 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 the Corporation – (a) to gain, directly or indirectly, an advantage for himself or herself or another person; or (b) to cause damage to the Corporation or any of its subsidiaries. Penalty: Fine not exceeding 2 000 penalty units or a term of imprisonment not exceeding 5 years, or both. 23. Duty to prevent insolvent trading (1) A director must prevent the Corporation from incurring a debt if – (a) the Corporation 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 Corporation 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 27 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 Corporation 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 Corporation 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 Corporation 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 Corporation from incurring the debt; or (d) that the director did not take part at the time in the Corporation's management because of illness or for some other good cause; or (e) that the director informed the Minister, before the debt was incurred, that the Corporation 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 Corporation by the Minister. 24. False or misleading information (1) An officer must not – (a) make a statement concerning the affairs of the Corporation or a subsidiary to a director, the 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 Corporation or a subsidiary of the Corporation made to a director, the 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 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 one year, or both. 25. Reliance on information or advice If – (a) an officer of the Corporation relies on information, or professional or expert advice, given or prepared by – (i) an employee of the Corporation 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 Corporation and the complexity of the structure and operations of the Corporation; 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. 26. 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 Corporation 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 Corporation; or (ii) relates to a contrac