Tourism Tasmania Act 1996 (Tas)

Tourism Tasmania Act 1996 An Act to establish Tourism Tasmania and for related purposes [Royal Assent 16 December 1996] 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 Tourism Tasmania Act 1996 . 2. Commencement (1) This Act, other than this section and sections 1 and 57 , commences on a day to be proclaimed. (2) This section and sections 1 and 57 commence on the day after the day on which this Act receives the Royal Assent. 3. Interpretation In this Act, unless the contrary intention appears – amend includes – (a) omit matter; and (b) insert or add matter; and (c) omit matter and substitute other matter; audit committee means the audit committee established under section 13 (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; Authority means Tourism Tasmania established under section 4 ; Board means the Board of Directors of the Authority; chairperson means the chairperson of the Board appointed under section 8 ; chief executive officer means the chief executive officer of the Authority appointed under section 17 ; commencement day means the day proclaimed under section 2 (1) ; committee means the audit committee or a committee established under section 13 (1) (b) ; contract includes an agreement or arrangement; corporate plan means the corporate plan approved under section 27 ; director means – (a) the chairperson; and (b) the chief executive officer; and (c) a person appointed as a director under section 8 (1) (c) , (d) or (e) ; employee means a person – (a) referred to in section 23 (1) ; and (b) enactment means an Act, order or other instrument of a legislative character; financial statements means the financial statements prepared in respect of the Authority under section 38 ; functions includes duties; Head of an Agency means the Head of a State Service Agency; marketing means the process, and any part of the process, of marketing experiences and services; marketing experiences and services includes product development, pricing, promotion and product distribution; ministerial charter means the charter provided to the Authority under section 24 ; objective means the objective specified in section 5 ; State charge means any rate, tax, duty or other impost imposed by or under any enactment of the State; statement of corporate intent has the meaning given by section 29 ; 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; Treasurer's Instructions means instructions issued under section 114 of the Government Business Enterprises Act 1995 . PART 2 - Tourism Tasmania 4. Tourism Tasmania (1) Tourism Tasmania is established. (2) The Authority – (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. 5. Objective of Authority The objective of the Authority is to maximise the economic and social benefits for Tasmania by fostering a sustainable tourism industry in the State through – (a) maximising the number of tourists in Tasmania; and (b) maximising the expenditure of tourists in Tasmania; and (c) facilitating the investment in, and development of, the tourism industry in Tasmania; and (d) contributing to the creation of employment opportunities within the Tasmanian tourism industry. 6. Functions of Authority (1) The functions of the Authority are as follows: (a) to market Tasmania as a desirable tourist destination; (b) to facilitate the sustainable growth of the Tasmanian tourism industry; (c) to support the Tasmanian tourism industry to achieve the best practice delivery of products and services; (d) to undertake, support and interpret research relevant to tourism in Tasmania; (e) to undertake strategic planning for the development and growth of a sustainable tourism industry in Tasmania; (f) to provide advice and support to the Minister in relation to the Tasmanian tourism industry; (g) to establish and maintain a cooperative relationship between the Authority, Government departments, statutory authorities, local government and the tourism industry in Tasmania; (h) to perform other functions imposed on the Authority by this or any other Act. (2) In performing its functions and exercising its powers, the Authority must have regard to – (a) the Agreement for the Sustainable Development of Tasmania's Tourism Industry dated 28 February 1996 between the Government and the Tourism Council of Australia (Tasmania Branch) while that agreement is in force; and (b) any other agreement between the Government and the Tourism Council Tasmania Limited while that other agreement is in force. 7. Powers of Authority (1) The Authority has power to do – (a) all things necessary or convenient to be done in connection with the performance of its functions; and (b) all other things that it is authorised to do by this or any other Act. (2) Without limiting subsection (1) , the Authority has power to – (a) undertake destinational and product marketing; and (b) carry out investigations and research into tourism in Tasmania and elsewhere; and (c) act as a travel agent; and (d) establish and maintain travel centres to assist travellers; and (e) acquire, hold, dispose of and otherwise deal with property; and (f) enter into contracts including a contract with another person for the performance of any of its functions or powers jointly with that other person; and (g) set charges, terms and conditions relating to work done, or services, goods or information supplied, by it; and (h) appoint agents, attorneys and consultants and act as an agent, attorney or consultant; and (i) form, and participate in the formation of, companies and participate in partnerships, trusts, joint ventures and other arrangements for the sharing of profits; and (j) carry on any business which may conveniently be carried on in conjunction with the performance of its functions; and (k) do all other things necessary or convenient to be done in connection with the exercise of its powers. (3) The Authority must not exercise its power to form, or participate in the formation of, a company or to participate in a partnership, trust, joint venture or other arrangement for the sharing of profits unless the Minister and Treasurer have approved, in writing, the exercise of that power. (4) The Authority may use and operate under – (a) one or more of the following trading names: (i) "Tourism Tasmania"; (ii) "Tasmania's Temptations Holidays"; (iii) "Tasmania Direct"; and (b) one or more other trading names approved by the Minister. PART 3 - Board of Directors Division 1 - Board 8. Board (1) The Authority has a Board of Directors consisting of – (a) the chairperson who has high-level skills and extensive experience in commerce; and (b) the chief executive officer; and (c) one person appointed on the nomination of the Tourism Council Tasmania Limited; and (d) 2 persons who have skills and experience in marketing-related industries or transport-related industries; and (e) 3 other persons who have the skills and experience necessary to enable the Authority to achieve its objective. (2) The chairperson and the directors referred to in subsection (1) (c) , (d) and (e) are appointed by the Governor on the recommendation of the Minister. (3) The Minister may require the Tourism Council Tasmania Limited to submit its nomination under subsection (1) (c) within the period of not less than 2 months specified in the requirement. (4) If the Tourism Council Tasmania Limited fails to comply with the requirement of the Minister, the Governor, on the recommendation of the Minister, may appoint for the purposes of subsection (1) (c) a person whom the Governor considers represents the interests of the Tourism Council Tasmania Limited. (5) Schedule 1 has effect with respect to directors. (6) Schedule 2 has effect with respect to the meetings of the Board. 9. Role of Board The Board is responsible to the Minister – (a) for the performance by the Authority of its functions; and (b) for the achievement by the Authority of its objectives as specified in this Act, any other Act and its corporate plan; and (c) for ensuring that the business and affairs of the Authority are managed and conducted in a manner that is in accordance with sound commercial practice. 10. Duty to notify Minister of developments (1) The Board must notify the Minister of any development in the Tasmanian tourism industry which, in the opinion of the Board, is significant within a reasonable time after the Board becomes aware of the development. (2) The Board must notify the 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 Authority; or (b) significantly affect the financial viability or operating ability of the Authority, any subsidiary or any partnership, trust, joint venture or arrangement for the sharing of profits in which the Authority participates. (3) A notification under subsection (2) is to be given immediately after the Board becomes aware of the development. 11. Powers of Board The 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. 12. Delegation The Board may, in writing, delegate any of its functions or powers other than this power of delegation to any one or more of the following persons: (a) a director; (b) a chief executive officer; (c) a committee; (d) an employee. 13. 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 charter of the Authority; and (b) monitoring the Authority's systems of financial reporting and internal control; and (c) the resources necessary for the performance of the internal audit function of the Authority. (4) Schedule 3 has effect with respect to – (a) the members of a committee; and (b) the meetings of a committee. 14. Acting directors (1) In this section, absent means – (a) absent from duty; or (b) absent from Australia; or (c) otherwise unable to perform the functions of the office of director. (2) The Minister may appoint a person to act as a director if the chairperson or another director referred to in section 8 (1) (c) , (d) or (e) is absent. (3) The appointment of a person to act as a director if the chairperson is absent is not an appointment to the position of chairperson. (4) Except as otherwise provided in this section, this Act applies to an appointment under subsection (2) as if it were the appointment of a director. (5) While a person appointed under subsection (2) is acting as a director that person is taken to be a director. (6) The appointment 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 2 - Directors generally 15. Duties of directors (1) A director must act honestly in the performance and the exercise of the functions and powers of a director. Penalty: Fine not exceeding 50 penalty units. (2) In the performance and exercise of the functions and powers of a director, a director must exercise the same degree of care and diligence that a person in a like position in a corporation within the meaning of the Corporations Act is required to exercise. Penalty: Fine not exceeding 50 penalty units. (3) A director or former director must not use improperly, whether within Tasmania or elsewhere, information acquired as a director – (a) to gain, directly or indirectly, a personal advantage or an advantage for another person; or (b) to cause damage to the Authority. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both. (4) A director or former director must not use improperly, whether within Tasmania or elsewhere, his or her position as a director or the fact that he or she is or was a director – (a) to gain, directly or indirectly, a personal advantage or an advantage for another person; or (b) to cause damage to the Authority. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both. 16. Repayment by director of improper profit, &c. If a director or former director is found guilty of an offence under section 15 , the Authority may recover in a court of competent jurisdiction as a debt due to it – (a) any profit made by the director or another person as a result of the committing of the offence; and (b) an amount equal to any loss and damage the Authority suffered as a result of the committing of the offence. PART 4 - Staff Division 1 - Chief executive officer 17. Chief executive officer (1) On the recommendation of the Minister, a person, other than the chairperson, may be appointed as chief executive officer of the Authority subject to and in accordance with the State Service Act 2000 . (2) Before recommending a person for appointment as chief executive officer, the Minister must consult with the Board in relation to the recommendation. (3) The chief executive officer is entitled to be paid the remuneration and allowances specified in the instrument of appointment. (4) The chief executive officer holds that office, subject to subsection (6) , for a term of not more than 5 years and on the conditions specified in the instrument of appointment. (4A) . . . . . . . . (4B) . . . . . . . . (4BA) . . . . . . . . (4C) . . . . . . . . (4D) . . . . . . . . (4E) . . . . . . . . (5) The chief executive officer must not engage in paid employment outside the duties of the office unless the instrument of appointment allows for it. (6) The appointment of a person as chief executive officer is not invalid merely because of a defect or irregularity in relation to the appointment. (7) The appointment of a person as chief executive officer may, on the recommendation of the Minister, be revoked in accordance with the instrument of appointment. (8) Before recommending the revocation of an appointment the Minister must consult with the Board in relation to the recommendation. 18. Role of chief executive officer (1) The chief executive officer is responsible to the Board for the general administration and management of the Authority. (2) The 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, the chief executive officer by this or any other Act. 19. Performance agreement (1) The Board and chief executive officer may enter into an agreement relating to the Board's expectations of the performance and exercise of the functions and powers of the chief executive officer. (2) The agreement may not prevent the chief executive officer from performing or exercising any function or power imposed on or given to the chief executive officer by this or any other Act. 20. Disclosure of interests The chief executive officer must inform the Board, in writing, of any direct or indirect pecuniary interest that he or she has in any business or body corporate that carries on a business as soon as practicable after he or she acquires, or becomes aware of, that interest. 21. Duties of chief executive officer (1) The chief executive officer must act honestly in the performance and exercise of the functions and powers of the chief executive officer under this or any other Act. Penalty: Fine not exceeding 50 penalty units. (2) In the performance and exercise of the functions and powers of the chief executive officer, the chief executive officer must exercise the same degree of care and diligence that a person in a like position in a corporation within the meaning of the Corporations Act is required to exercise. Penalty: Fine not exceeding 50 penalty units. (3) The chief executive officer or a former chief executive officer must not use improperly, whether within Tasmania or elsewhere, information acquired as chief executive officer – (a) to gain, directly or indirectly, a personal advantage or an advantage for another person; or (b) to cause damage to the Authority. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both. (4) The chief executive officer or a former chief executive officer must not use improperly, whether within Tasmania or elsewhere, his or her position as chief executive officer or the fact that he or she is or was the chief executive officer – (a) to gain, directly or indirectly, a personal advantage or an advantage for another person; or (b) to cause damage to the Authority. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both. 22. Acting chief executive officer (1) In this section, absent means – (a) absent from duty; or (b) absent from Australia; or (c) otherwise unable to perform the functions of the office of chief executive officer; or (d) has died, resigned or been removed from office and a new chief executive officer has not been appointed. (2) On the recommendation of the Minister, a person, other than the chairperson, may be appointed to act as chief executive officer during any or every period during which the chief executive officer is absent. (3) Except as otherwise provided in this section, this Act applies to the appointment of a person under subsection (2) as if it were the appointment of the chief executive officer. (4) While a person appointed under subsection (2) is acting as chief executive officer that person is taken to be the chief executive officer. Division 2 - Other staff 23. Staff (1) Subject to and in accordance with the State Service Act 2000 , persons may be employed or appointed for the purposes of this Act. (2) . . . . . . . . (3) . . . . . . . . (4) . . . . . . . . PART 5 - Charters and Plans Division 1 - Ministerial charter 24. Ministerial charter (1) Within 3 months after the commencement day, the Minister must provide the Authority with a ministerial charter. (2) The Minister may at any time at his or her own discretion or on receipt of the application of the Authority – (a) amend a ministerial charter; or (b) revoke a ministerial charter and substitute another ministerial charter. (3) Before or while preparing a ministerial charter or an amendment to a ministerial charter, the Minister must consult with the Authority. (4) A ministerial charter and any amendment to a ministerial charter are to be in writing and signed by the Minister. (5) The Minister is to provide a copy of the ministerial charter and any amendment to it to the Treasurer. (6) A ministerial charter or any amendment to a ministerial charter takes effect on a day specified in it, being a day not earlier than the day on which it is provided to the Authority. (7) The Minister must cause a copy of the ministerial charter and any amendment to it to be laid before each House of Parliament within 10 sitting days after providing a copy of it to the Treasurer. 25. Contents of ministerial charter (1) A ministerial charter is to specify the policy expectations of the Minister for the Authority. (2) A ministerial charter may limit the functions and powers of the Authority and the performance and exercise of those functions and powers, but – (a) may not prevent the Authority from performing a function it is required to perform or otherwise complying with this or any other Act; and (b) may not extend the functions and powers of the Authority. 26. Compliance with ministerial charter The Board must ensure that the business and affairs of the Authority are conducted in a manner that is consistent with the ministerial charter. Division 2 - Plans of Authority 27. Corporate plan (1) In each financial year, the Board must prepare a corporate plan for the Authority. (2) The corporate plan – (a) is to cover a period of not less than 3 financial years commencing on the day it takes effect; and (b) is to contain a summary of the projected financial results of the Authority in respect of the current financial year and each financial year covered by the plan; and (c) is to contain a summary of the financial results of the Authority in respect of the financial year immediately preceding the current financial year; and (d) is to contain the statement of corporate intent; and (e) is to specify the strategic direction of the Authority during the period covered by the plan; and (f) is to be in a form and contain the information specified by the Minister; and (g) is to be consistent with the objective and ministerial charter of the Authority. (3) The Board must provide a draft of the corporate plan to the Minister, Treasurer and Tourism Council Tasmania Limited not later than 60 days before the day on which the corporate plan will take effect. (4) When a draft corporate plan is approved by the Minister it becomes the corporate plan of the Authority. (5) The Minister must approve a corporate plan, prepared in accordance with this section and section 28 , by not later than 30 days before the day on which the corporate plan will take effect. (6) The corporate plan takes effect on the first day of the financial year next commencing after its approval by the Minister. (7) The Board may prepare an amendment of its corporate plan at any time. (8) An amendment of the corporate plan takes effect when it is approved by the Minister. (9) The Board must provide a copy of its corporate plan and an amended corporate plan to the Treasurer and the Tourism Council Tasmania Limited within 14 days after the Board has been notified of its approval by the Minister. (10) Except where the Minister otherwise approves, the Authority must act in accordance with its corporate plan or amended corporate plan. 28. Consultation when preparing draft corporate plan (1) In the course of preparing the draft corporate plan the Board must consult – (a) in relation to the interests of the State as a whole and the long-term objectives of the Authority, with the Minister; and (b) in relation to the financial performance objectives of the Authority, with the Minister and Treasurer together; and (c) in relation to the interests of the tourism industry in Tasmania as a whole, with the Tourism Council Tasmania Limited. (2) The Minister may give a direction to the Board – (a) in relation to a long-term objective of the Authority; or (b) if the Minister considers the draft corporate plan to be inconsistent with the ministerial charter, in relation to that inconsistency. (3) The Minister and the Treasurer jointly may give a direction to the Board in relation to the financial performance objectives of the Authority. (4) Subject to subsection (5) , the Board must comply with a direction if it is in writing and – (a) in the case of a direction referred to in subsection (2) , signed by the Minister; or (b) in the case of a direction referred to in subsection (3) , signed by both the Minister and the Treasurer. (5) A direction has no effect in respect of a contract entered into by the Authority before the direction was given if compliance with the direction would result in the Authority failing to perform the contract. 29. Statement of corporate intent (1) The statement of corporate intent of the Authority is a summary of its corporate plan. (2) The statement of corporate intent of the Authority must not disclose any information which the Minister considers may, if disclosed – (a) disadvantage or cause damage to the Authority, directly or indirectly; or (b) enable another person, directly or indirectly, to gain an advantage. (3) The statement of corporate intent is to be in a form, and contain the information, specified by the Minister. 30. Validity of actions, &c. Anything done by or in relation to the Authority is not void or unenforceable only because the Authority has contravened this Part. PART 6 - Financial Affairs 31. Authorised deposit-taking institution accounts The Authority may open and maintain such authorised deposit-taking institution accounts as it considers necessary. 32. Investment Subject to section 16 of the Tasmanian Public Finance Corporation Act 1985 , the Authority may invest any funds held by it and any interest accumulated in respect of those funds in any manner which is consistent with sound commercial practice. 33. Borrowing from Treasurer (1) The Treasurer may lend to the Authority, out of money provided by Parliament for the purpose, such money as the Treasurer considers appropriate. (2) If the Authority applies for a loan in respect of a loss incurred by it, in determining whether to make the loan the Treasurer must consider – (a) the amount of the loss; and (b) the reasons for the loss; and (c) the consequences of the loss; and (d) any other matter the Treasurer considers relevant. (3) In determining the consequences of a loss, the Treasurer must consider – (a) the impact of the loss on the liquidity position of the Authority; and (b) the availability of reserves to meet the loss; and (c) the impact of the loss on the viability of the Authority. (4) A loan is subject to the conditions determined by the Treasurer. (5) An amount lent under subsection (1) and any interest or other charge payable in respect of the loan is a debt repayable into the Public Account by the Authority. 34. Borrowing from person other than Treasurer (1) Subject to section 16 of the Tasmanian Public Finance Corporation Act 1985 , the Authority may borrow, or otherwise obtain financial accommodation, from a person other than the Treasurer for the purposes of performing its functions and achieving its objectives if the Minister and Treasurer approve that borrowing or other obtaining of financial accommodation. (2) The Authority may use all or part of its assets as security for a borrowing or financial accommodation obtained by it under subsection (1) and any interest or charges payable in respect of that financial accommodation. (3) On the request of the Minister, the Treasurer may guarantee the payment or repayment to a person from which the Authority borrows or obtains financial accommodation under subsection (1) of any one or more of the following: (a) the amount borrowed or credit obtained; (b) any interest payable in respect of the amount borrowed or financial accommodation; (c) any charges relating to the borrowing or financial accommodation; (d) any expenses of that person incurred in relation to the borrowing or financial accommodation and which are payable by the Authority. (4) A guarantee is subject to the conditions determined by the Treasurer. (5) A payment or repayment which is required to be made under a guarantee is payable out of the Public Account without further appropriation than this section. (6) If the Treasurer makes any payment or repayment under a guarantee, an amount equal to the amount so paid or repaid, and any interest or other charge payable by the Authority in accordance with the conditions to which the guarantee is subject, is a debt repayable by the Authority into the Public Account on the conditions and in the manner determined by the Treasurer. (7) A creditor may not enforce a guarantee against the Treasurer until the creditor has exercised all his, her or its rights and remedies under all securities held in respect of the payment or repayment guaranteed. 35. Effect of Financial Agreement Act 1994 Where the Treasurer, under section 5(1) of the Financial Agreement Act 1994 , requires the Authority to do or refrain from doing anything for the purpose of implementing the Agreement, within the meaning of that Act, the Authority must comply with that requirement. 36. Authority not exempt from State charges The Authority is not exempt from a State charge merely because it is an instrumentality of the Crown. PART 7 - Accounting Records, Financial Statements and Reports 37. Accounting records The Authority must – (a) keep such accounting records as correctly record and explain its transactions (including any transactions as trustee) and financial position; and (b) keep those records in a manner that – (i) allows true and fair accounts of the Authority to be prepared from time to time; and (ii) allows its accounts to be conveniently and properly audited or reviewed; and (iii) subject to any contrary written direction given by the Minister to the Authority, complies with Australian Accounting Standards; and (iv) complies with any written directions given by the Minister to the Authority. 38. Financial statements (1) The Board is to prepare and forw