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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
IRRIGATION COMPANY BILL 2011
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Purposes of Act
4. Interpretation
5. Application of Act to subsidiary
6. Transfer day
PART 2 - COMPANY
Division 1 - Organisation and status of Company
7. Principal objectives of Company
8. Constitution of Company
9. Members of Company
10. Shares
11. Consideration for further shares
12. Status of Company
13. Treasurer's Instructions may apply to Company and subsidiary
Division 2 - Financial affairs of Company
14. Audit
15. Borrowing
16. Guarantee or indemnity
[Bill 22]-III
17. Guarantee fees
18. Tax equivalents
19. Superannuation contributions
20. Long service leave for certain employees
21. Financial arrangements
22. Effect of Financial Agreement Act 1994
Division 3 - Duties of members, Board and Company
23. Directors of Company
24. Members' statement of expectations
25. Corporate plan of Company
26. Accounts and report of Company
Division 4 - Non-commercial activities
27. Non-commercial activities
PART 3 - ACQUISITION OF AND ENTRY ON LAND
28. Acquisition of land
PART 4 - TRANSFER OF ASSETS, &C., AND EMPLOYEES TO OR
FROM COMPANY
29. Transfer to Company of assets, liabilities and contracts of
Commission and TIS Corporation
30. Transfer of assets, &c., to or from Crown or council by transfer
notice
31. Transfer of persons subject to a secondment arrangement
32. Construction of instruments
33. Continuation and institution of proceedings, &c.
34. Contracts
35. Removing doubt relating to transfer
PART 5 - MISCELLANEOUS
36. Application of Corporations Act
37. Protection for acts done under this Act
38. Delegation by Minister
39. Regulations
2
40. Administration of Act
41. Savings and transitional provisions
42. Repeal and revocation of Rivers and Water Supply Commission
Act 1999 and proclamation under that Act
43. Deregistration of TIS Corporation
SCHEDULE 1 - SAVINGS AND TRANSITIONAL PROVISIONS
3
4
IRRIGATION COMPANY BILL 2011
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
19 May 2011
(Brought in by the Minister for Primary Industries and Water,
the Honourable Bryan Alexander Green)
A BILL FOR
An Act to provide for the control, objects and operation of
Tasmanian Irrigation Pty Ltd, to provide or allow for the
transfer to that company of the assets and liabilities of the
Rivers and Water Supply Commission and Tasmanian
Irrigation Schemes Pty Ltd and of certain assets and
liabilities of the Crown and councils, to provide for the
deregistration of Tasmanian Irrigation Schemes Pty Ltd,
to repeal the Rivers and Water Supply Commission Act 1999
and to provide for related matters
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 Irrigation Company
Act 2011.
[Bill 22] 5
Irrigation Company Act 2011
Act No. of
s. 2 Part 1 - Preliminary
2. Commencement
(1) Part 1 and sections 30, 31, 39 and 40 commence
on the day on which this Act receives the Royal
Assent.
(2) The remaining provisions of this Act commence
on the transfer day.
3. Purposes of Act
The purposes of this Act are -
(a) to provide for matters relating to the
control, objects and operation of the
Company; and
(b) to provide for the transfer to the
Company of the assets and liabilities of
the Rivers and Water Supply
Commission and TIS Corporation and to
make provision in respect of the
employees of the Rivers and Water
Supply Commission and TIS Corporation
consequent on the transfer of those assets
and liabilities; and
(c) to allow for the transfer to the Company
of certain assets and liabilities of the
Crown and councils; and
(d) to allow for the transfer of assets and
liabilities of the Company to the Crown.
6
Irrigation Company Act 2011
Act No. of
Part 1 - Preliminary s. 4
4. Interpretation
In this Act, unless the contrary intention
appears -
"annual general meeting" means the annual
general meeting of the Company held in
accordance with its constitution;
"asset" includes any, and any part of any,
property, business, operation and right;
"Board" means the Board of Directors of the
Company;
"Commission" means the Rivers and Water
Supply Commission established under
the Rivers and Water Supply Commission
Act 1999;
"Company" means Tasmanian Irrigation Pty
Ltd (ACN 133 148 384), formerly known
as Tasmanian Irrigation Development
Board Pty Ltd;
"constitution" means the constitution of the
Company;
"contract" means -
(a) an agreement, arrangement,
undertaking, lease, licence,
warranty or other contract; or
(b) part of an agreement,
arrangement, undertaking, lease,
licence, warranty or other
contract;
7
Irrigation Company Act 2011
Act No. of
s. 4 Part 1 - Preliminary
"Corporations Act" means the Corporations
Act 2001 of the Commonwealth;
"council asset or liability" means an asset or
liability belonging to a council that is
specified in a transfer notice and
transferred to the Company under
section 30;
"Crown asset or liability" means an asset or
liability belonging to the Crown that is
specified in a transfer notice and
transferred to the Company under
section 30;
"director" means a director of the Company;
"document" includes an instrument and part
of a document;
"effective transfer notice day" means the
day on which a transfer notice, or part of
a transfer notice, takes effect;
"legal or other proceeding" includes
arbitration proceedings and mediation
proceedings;
"liability" includes any, or any part of any,
liability, duty and obligation, whether
actual, contingent or prospective;
"member", in respect of the Company, means
a member of the Company referred to in
section 9;
8
Irrigation Company Act 2011
Act No. of
Part 1 - Preliminary s. 4
"principal objectives" means the principal
objectives of the Company specified in
section 7;
"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) any other rights and property;
"regulations" means regulations made under
section 39;
"relevant day of transfer" means -
(a) the transfer day in relation to -
(i) a transferring asset,
transferring liability or
transferring contract
transferred under
section 29; or
(ii) a transferring employee;
or
(b) the day on which a transfer notice
takes effect in relation to a
transferring asset, transferring
liability or transferring contract
transferred by that transfer notice
under section 30;
9
Irrigation Company Act 2011
Act No. of
s. 4 Part 1 - Preliminary
"right" includes any easement in gross,
covenant in gross, other right, power,
privilege and immunity, whether actual,
contingent or prospective;
"secondment arrangement" means an
arrangement under section 46 of the State
Service Act 2000 for a State Service
employee or State Service officer to
undertake duties with the Commission or
TIS Corporation;
"subsidiary" has the same meaning as in the
Corporations Act;
"TIS Corporation" means Tasmanian
Irrigation Schemes Pty Ltd
(ACN 133 148 491);
"transfer day" means 1 July 2011 or a later
day declared by the Minister under
section 6 to be the transfer day;
"transfer notice" means -
(a) a notice made under section 30;
or
(b) a part of such a notice;
"transferor" -
(a) in relation to any asset, liability
or contract transferred from the
Commission, TIS Corporation,
the Crown, a council or the
Company and vested in, or
10
Irrigation Company Act 2011
Act No. of
Part 1 - Preliminary s. 4
transferred to, the Company or
the Crown under section 29 or 30,
means the Commission, TIS
Corporation, the Crown, the
council or the Company; or
(b) in relation to a transferring
employee, means the
Commission or TIS Corporation,
whichever the transferring
employee performed duties for
immediately before the transfer
day;
"transfer recipient" means -
(a) the Company in relation to -
(i) an asset, liability or
contract vested in or
transferred to it under
section 29 or 30; or
(ii) a transferring employee;
or
(b) the Crown in relation to any
asset, liability or contract vested
in or transferred to it under
section 30;
"transferring asset" means any asset that
vests in the Company or the Crown under
section 29 or 30;
11
Irrigation Company Act 2011
Act No. of
s. 5 Part 1 - Preliminary
"transferring contract" means any contract
transferred to the Company or the Crown
under section 29 or 30;
"transferring employee" means a State
Service employee or State Service officer
who, immediately before the transfer
day, was the subject of a secondment
arrangement by which he or she was
required to undertake duties with the
Commission or TIS Corporation;
"transferring liability" means any liability
that becomes the liability of the
Company or the Crown under section 29
or 30;
"Treasurer's Instructions" means
instructions issued under section 114 of
the Government Business Enterprises Act
1995 and applicable to the Company in
accordance with section 13 of this Act.
5. Application of Act to subsidiary
If the Company arranges for any of its functions
to be performed by a subsidiary, the application
of this Act applies to, and in respect of -
(a) the subsidiary as if it were the Company;
and
(b) the directors, and Board of Directors, of
the subsidiary as if they were the
12
Irrigation Company Act 2011
Act No. of
Part 1 - Preliminary s. 6
directors, and Board of Directors, of the
Company.
6. Transfer day
(1) The Minister, by order made before 1 July 2011,
may declare a day later than that day to be the
transfer day.
(2) An order under subsection (1) is a statutory rule
for the purposes of the Rules Publication Act
1953.
13
Irrigation Company Act 2011
Act No. of
s. 7 Part 2 - Company
PART 2 - COMPANY
Division 1 - Organisation and status of Company
7. Principal objectives of Company
The principal objectives of the Company are -
(a) to develop, own and operate irrigation
schemes in Tasmania; and
(b) to operate its businesses and activities
effectively and efficiently and in
accordance with sound commercial
practice.
8. Constitution of Company
(1) The constitution of the Company is to include
the principal objectives of the Company.
(2) The provisions of the constitution of the
Company are to be consistent with this Act.
(3) The Board -
(a) is to provide to the Minister a copy of the
constitution of the company as soon as
practicable after the commencement of
this Act; and
(b) is to provide to the Minister a copy of an
amendment to the constitution of the
company as soon as practicable after that
amendment is made.
14
Irrigation Company Act 2011
Act No. of
Part 2 - Company s. 9
(4) The Minister is to cause a copy of the
constitution of the Company and each
amendment to that constitution to be laid before
each House of Parliament within 7 sitting-days
of receiving it from the Company under
subsection (3).
9. Members of Company
(1) The members of the Company are to be 2
persons of whom -
(a) one is the Minister; and
(b) one is the Treasurer.
(2) If at any time one person is both the Minister and
the Treasurer, the members of the Company are
2 persons of whom -
(a) one is the Minister; and
(b) one is another Minister determined by
the Minister to be a member of the
Company.
10. Shares
(1) Shares in the Company held by the members are
held in trust for the Crown.
(2) A member of the Company who holds shares in
trust for the Crown is not to acquire shares in the
Company for his or her own benefit.
15
Irrigation Company Act 2011
Act No. of
s. 11 Part 2 - Company
(3) Any shares acquired in the Company in
contravention of subsection (1) are taken to be
held in trust for the Crown but the Crown is not
liable to meet the cost of that acquisition.
11. Consideration for further shares
The consideration for any further shares issued
to the members of the Company after the
commencement of this section is to be any one
or more of the following as agreed between the
Company and its members:
(a) any money provided by Parliament for
that purpose;
(b) any assets vested in the Company under
section 29 or 30;
(c) any other consideration as so agreed.
12. Status of Company
(1) Unless this or any other Act expressly provides
otherwise, the Company -
(a) is not, and does not represent, the Crown;
and
(b) is not exempt from any rates, tax, duty or
other impost under any law merely
because the Crown has beneficial
ownership of shares in it; and
16
Irrigation Company Act 2011
Act No. of
Part 2 - Company s. 13
(c) is not subject or entitled to any
prerogative right or privilege of the
Crown.
(2) The Crown is not liable for any liability or
obligation of the Company or subsidiary of the
Company unless the Treasurer gives a guarantee
or indemnity under section 16 in relation to that
liability or obligation.
13. Treasurer's Instructions may apply to Company
and subsidiary
(1) The Treasurer may issue instructions under
section 114 of the Government Business
Enterprises Act 1995 in respect of guidelines,
principles, practices and procedures to be
observed by the Company, or a subsidiary of the
Company, as if the Company, or subsidiary,
were a Government Business Enterprise, within
the meaning of that Act, that is specified in
Schedules 1, 2 and 3 to that Act.
(2) The Company, and a subsidiary of the Company,
are to comply with all relevant Treasurer's
Instructions.
(3) The Treasurer may exempt the Company or a
subsidiary of the Company, or both, from the
obligation to comply with all or part of a
Treasurer's Instruction.
17
Irrigation Company Act 2011
Act No. of
s. 14 Part 2 - Company
Division 2 - Financial affairs of Company
14. Audit
The Auditor-General is to act as the auditor for
the Company.
15. Borrowing
The Company is not to borrow from any person
other than the Tasmanian Public Finance
Corporation except as otherwise approved by the
Treasurer in writing.
16. Guarantee or indemnity
(1) On the written request of the Company, the
Treasurer, in writing, may guarantee or give an
indemnity, or guarantee and give an indemnity,
in relation to -
(a) the repayment of any money lent or
agreed to be lent to the Company; or
(b) the performance of an obligation
undertaken by the Company or which the
Company has agreed to undertake
(whether that obligation is monetary or
otherwise).
(2) A guarantee or an indemnity -
18
Irrigation Company Act 2011
Act No. of
Part 2 - Company s. 17
(a) may include a guarantee of, or an
indemnity relating to, any interest and
other charges payable -
(i) in respect of money lent or
agreed to be lent; or
(ii) in respect of or arising from an
obligation undertaken or agreed
to be undertaken; and
(b) is subject to any conditions determined
by the Treasurer and specified in the
guarantee or indemnity.
(3) The Treasurer is to make any payment required
under or arising from a guarantee or indemnity
out of money provided by Parliament for the
purpose.
(4) This section has effect regardless of whether the
loan or obligation was undertaken, agreed to be
undertaken or required to be repaid or performed
in Tasmania or elsewhere.
17. Guarantee fees
Division 1 of Part 11 of the Government
Business Enterprises Act 1995 -
(a) applies in relation to the Company as if
the Company were a Government
Business Enterprise specified in
Schedule 3 to that Act; and
19
Irrigation Company Act 2011
Act No. of
s. 18 Part 2 - Company
(b) applies in relation to a subsidiary of the
Company as if the subsidiary were a
subsidiary within the meaning of the
Government Business Enterprises Act
1995.
18. Tax equivalents
The provisions of Part 10 of the Government
Business Enterprises Act 1995 -
(a) apply in relation to the Company as if the
Company were a Government Business
Enterprise specified in Schedule 2 to that
Act; and
(b) apply in relation to a subsidiary of the
Company as if the subsidiary were a
subsidiary within the meaning of that
Act.
19. Superannuation contributions
(1) In this section -
"prescribed employee" means a person who,
immediately before becoming an
employee of the Company, was a
transferring employee or a State Service
employee or State Service officer.
(2) The Company is not to establish a
superannuation scheme but may make
contributions to one or more superannuation
20
Irrigation Company Act 2011
Act No. of
Part 2 - Company s. 19
schemes that comply with the law of the
Commonwealth relating to superannuation.
(3) Without limiting subsection (2), the Company
may participate in the superannuation scheme
provided by the Retirement Benefits Act 1993 in
respect of a prescribed employee employed by
the Company if that prescribed employee was
subject to that superannuation scheme
immediately before the transfer day.
(4) If under subsection (3) the Company participates
in the superannuation scheme provided by the
Retirement Benefits Act 1993 -
(a) the Company is taken to be a prescribed
authority for the purposes of that Act in
respect of any of its employees who are
subject to the scheme; and
(b) the Minister administering the
Retirement Benefits Act 1993 may, by
written notice provided to the
Company -
(i) require the Company to provide
such information as is required
for an actuarial review of any of
its liabilities under that Act; and
(ii) give to the Company such other
instructions relating to
superannuation as he or she
considers appropriate.
21
Irrigation Company Act 2011
Act No. of
s. 20 Part 2 - Company
(5) If the Company is given a requirement or
instruction under subsection (4), the Company is
to comply with the requirement or instruction.
20. Long service leave for certain employees
(1) In this section -
"prescribed employee" means a person who,
immediately before becoming an
employee of the Company, was a
transferring employee or a State Service
employee or State Service officer.
(2) If immediately before the transfer day a
prescribed employee was an employee within the
meaning of the Long Service Leave (State
Employees) Act 1994, the prescribed employee
continues to be such an employee while
employed by the Company and, for that purpose,
the Company is taken to be a prescribed
authority within the meaning of that Act.
21. Financial arrangements
(1) In this section -
"financial arrangement" has the same
meaning as in the Government Business
Enterprises Act 1995.
(2) The Treasurer, by notice provided to the
Company, may specify that the Company is not
to enter into or deal in a financial arrangement as
22
Irrigation Company Act 2011
Act No. of
Part 2 - Company s. 22
provided by, or in the circumstances specified in,
the notice.
(3) The Company must not enter into or deal in a
financial arrangement in contravention of a
notice provided under subsection (2).
(4) The Board must ensure that any financial
arrangement entered into, or dealt in, by the
Company is entered into and performed, or dealt
in, in accordance with the Treasurer's
Instructions.
22. Effect of Financial Agreement Act 1994
If, under section 5(1) of the Financial Agreement
Act 1994, the Treasurer requires the Company to
do or refrain from doing anything for the
purpose of implementing the Agreement, within
the meaning of that Act, the Company is to
comply with that requirement.
Division 3 - Duties of members, Board and Company
23. Directors of Company
(1) The members of the Company are to ensure that
it has a Board of Directors who have the
experience and skills necessary to enable the
Company to achieve its objectives.
(2) The members of the Company are to appoint the
Board in accordance with the constitution.
23
Irrigation Company Act 2011
Act No. of
s. 24 Part 2 - Company
24. Members' statement of expectations
(1) As soon as practicable after the commencement
of this Act, the members are to provide the
Board with a statement of expectations.
(2) The statement of expectations is to specify -
(a) the expectations of the members in
relation to the strategic priorities of the
Company; and
(b) the policy expectations of the members
for the performance of the Company and
its subsidiaries.
(3) The members may at any time at their own
discretion, or on the application of the Board -
(a) amend the statement of expectations; or
(b) revoke the statement of expectations and
substitute another statement of
expectations.
(4) Before or while preparing a statement of
expectations or an amendment to a statement of
expectations, the members are to consult with
the Board.
25. Corporate plan of Company
(1) The Board is to prepare a corporate plan each
financial year and submit it to the members in
accordance with the Treasurer's Instructions.
24
Irrigation Company Act 2011
Act No. of
Part 2 - Company s. 26
(2) The corporate plan is to be prepared in the
context of the statement of expectations provided
to the Board under section 24.
(3) The Company is to comply with the corporate
plan.
26. Accounts and report of Company
(1) The Board is to provide the members with a
copy of each of the following reports for the
Company:
(a) the annual financial report;
(b) the directors' report;
(c) the auditor's report.
(2) The Minister is to cause to be laid before each
House of Parliament each copy provided to him
or her under subsection (1) within 7 sitting-days
after receiving it.
Division 4 - Non-commercial activities
27. Non-commercial activities
(1) The members may direct the Company to do one
or more of the following:
(a) to perform an activity that the members
consider to be in the public interest but
that may cause the Company to suffer
financial detriment;
25
Irrigation Company Act 2011
Act No. of
s. 27 Part 2 - Company
(b) to cease to perform such an activity;
(c) to cease to perform an activity that the
Company is otherwise entitled to
perform if the members consider that the
activity is not in the public interest.
(2) A direction is to be in writing provided to the
Company.
(3) The Company is to comply with a direction.
(4) If the Company satisfies the members that it has,
or will, suffer financial detriment as a result of
complying with a direction, the Company is
entitled to compensation or payment for
compliance with the direction in the amount
determined by the Treasurer.
(5) A reference in this section to suffering financial
detriment includes a reference to incurring net
costs that are greater than would have been
incurred if the Company had not complied with
the direction.
26
Irrigation Company Act 2011
Act No. of
Part 3 - Acquisition of and Entry on Land s. 28
PART 3 - ACQUISITION OF AND ENTRY ON LAND
28. Acquisition of land
(1) The Company is an acquiring authority for the
purposes of the Land Acquisition Act 1993 and,
as such, may acquire land under that Act.
(2) Despite subsection (1), the Company may only
acquire land by compulsory process under the
Land Acquisition Act 1993 -
(a) if it does so in accordance with section
183 of the Water Management Act 1999
for the purpose of establishing a water
district under that Act; or
(b) if it has the consent of the Minister to so
acquire that land.
(3) The Company is a public authority established
by or under an Act for the purposes of the
Conveyancing and Law of Property Act 1884.
(4) Without limiting subsection (1), the Company -
(a) may acquire an easement in gross within
the meaning of section 90A of the
Conveyancing and Law of Property Act
1884; and
(b) may enter into, or acquire the benefit of,
a covenant in gross within the meaning
of section 90AB of that Act.
27
Irrigation Company Act 2011
Act No. of
s. 29 Part 4 - Transfer of Assets, &c., and Employees to or from Company
PART 4 - TRANSFER OF ASSETS, &C., AND
EMPLOYEES TO OR FROM COMPANY
29. Transfer to Company of assets, liabilities and
contracts of Commission and TIS Corporation
(1) In this section -
"contract" means a contract, agreement,
arrangement, undertaking or part of a
contract, agreement, arrangement or
undertaking, but does not include a
contract of employment;
"contract of employment" includes -
(a) a secondment arrangement; and
(b) an appointment as a director of
the Commission or TIS
Corporation; and
(c) an appointment referred to in
clause 5 of Schedule 1; and
(d) a contract referred to in clause 6
of Schedule 1;
"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.
28
Irrigation Company Act 2011
Act No. of
Part 4 - Transfer of Assets, &c., and Employees to or from Company s. 29
(2) On the transfer day -
(a) the assets of the Commission and TIS
Corporation vest in the Company without
the need for any further conveyance,
transfer, assignment or assurance; and
(b) the rights and liabilities of the
Commission and TIS Corporation
become the rights and liabilities of the
Company without the need for any
further conveyance, transfer, assignment
or assurance; and
(c) the contracts made or entered into by the
Commission or TIS Corporation, or both,
but not performed, executed, discharged
or otherwise terminated, before the
transfer day are transferred to the
Company; and
(d) the Commission and TIS Corporation
cease to be parties to a contract referred
to in paragraph (c).
(3) For the purposes of subsection (2)(a), the share
of TIS Corporation held by the Commission is
not an asset of the Commission.
(4) On and after the transfer day -
(a) a contract referred to in subsection (2)(c)
is taken to have been made or entered
into by the Company; and
(b) a reference to the Commission or TIS
Corporation, or both, in a contract
29
Irrigation Company Act 2011
Act No. of
s. 30 Part 4 - Transfer of Assets, &c., and Employees to or from Company
referred to in subsection (2)(c) is taken to
be or include, as appropriate, a reference
to the transfer recipient.
(5) State tax is not payable in respect of any
document prepared to give effect to
subsection (2).
30. Transfer of assets, &c., to or from Crown or council
by transfer notice
(1) In this section -
"contract" means a contract, agreement,
arrangement, undertaking or part of a
contract, agreement, arrangement or
undertaking, but does not include a
contract of employment;
"contract of employment" includes -
(a) a secondment arrangement; and
(b) an appointment as a director of
the Commission or TIS
Corporation; and
(c) an appointment referred to in
clause 5 of Schedule 1; and
(d) a contract referred to in clause 6
of Schedule 1;
"specified" means specified in a transfer
notice.
30
Irrigation Company Act 2011
Act No. of
Part 4 - Transfer of Assets, &c., and Employees to or from Company s. 30
(2) The Minister, by notice published in the Gazette,
may transfer to the Company -
(a) such -
(i) assets owned by the Crown; and
(ii) liabilities of the Crown; and
(iii) contracts to which the Crown is a
party; and
(b) with the consent of a council, such -
(i) assets owned by the council; and
(ii) liabilities of the council; and
(iii) contracts to which the council is a
party -
as are specified in the notice.
(3) The Minister, by notice published in the Gazette,
may transfer to the Crown such -
(a) assets owned by the Company; and
(b) liabilities of the Company; and
(c) contracts to which the Company is a
party -
as are specified in the notice.
(4) A transfer notice under subsection (2) may be
combined with a transfer notice under
subsection (3).
31
Irrigation Company Act 2011
Act No. of
s. 30 Part 4 - Transfer of Assets, &c., and Employees to or from Company
(5) A transfer notice may -
(a) specify conditions including, without
limitation -
(i) conditions relating to the transfer
of the assets, liabilities and
contracts; and
(ii) conditions relating to the
payment of consideration, if any
is payable; and
(b) provide for any matter that is incidental
to the transfer of the assets, liabilities and
contracts.
(6) A transfer notice takes effect on the specified
day or days, whether that day is before, on or
after the day on which the transfer notice is
published in the Gazette.
(7) On the day on which a transfer notice takes
effect -
(a) the specified assets vest in the transfer
recipient in accordance with the transfer
notice, without the need for any further
conveyance, transfer, assignment or
assurance but subject to any conditions
specified in the transfer notice; and
(b) the specified liabilities become the
liabilities of the transfer recipient, in
accordance with the transfer notice,
without the need for any further
conveyance, transfer, assignment or
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Act No. of
Part 4 - Transfer of Assets, &c., and Employees to or from Company s. 30
assurance but subject to any conditions
specified in the transfer notice; and
(c) the transferor ceases to be a party to the
specified contracts unless the transfer
notice provides otherwise or except to
the extent specified in the transfer notice.
(8) On and after the day on which a transfer notice
takes effect -
(a) a specified contract is taken to have been
made by the transfer recipient; and
(b) a reference to the transferor in a specified
contract is taken to be or include, as
appropriate, a reference to the transfer
recipient.
(9) Subsection (7)(c) and subsection (8) have effect
despite any contrary provision in the specified
contract.
(10) The Minister may amend or revoke a transfer
notice.
(11) A transfer notice is not a statutory rule for the
purposes of the Rules Publication Act 1953.
(12) State tax is not payable in respect of any
document prepared to give effect to a transfer
notice or subsection (7).
33
Irrigation Company Act 2011
Act No. of
s. 31 Part 4 - Transfer of Assets, &c., and Employees to or from Company
31. Transfer of persons subject to a secondment
arrangement
(1) Before the transfer day, the Minister is to give to
each State Service employee and State Service
officer who is to become a transferring employee
written notice that his or her secondment to the
Commission or TIS Corporation is to be
transferred to the Company and the date, or
approximate date, on which that transfer will
take effect.
(2) On the transfer day, the secondment arrangement
relating to each transferring employee -
(a) continues in effect; and
(b) the requirement in the secondment
arrangement for the transferring
employee to undertake duties with the
Commission or TIS Corporation is taken
to be a requirement to undertake duties
with the Company.
(3) A transferring employee is not entitled to any
compensation or other payment in respect of the
change of the organisation for which he or she is
required to undertake duties under his or her
secondment arrangement or any change in his or
her position description, title, role or duties that
results from that change of organisation.
(4) Before, or as soon as practicable after, the
transfer day, the Company by written notice
provided to a transferring employee may
determine the position description, title, role or
duties for the position to be occupied, or
34
Irrigation Company Act 2011
Act No. of
Part 4 - Transfer of Assets, &c., and Employees to or from Company s. 32
occupied, by the transferring employee in the
Company that is different from his or her
position description, title, role or duties with the
Commission or TIS Corporation.
32. Construction of instruments
(1) In this section -
"contract of employment" includes -
(a) a secondment arrangement; and
(b) an appointment as a director of
the Commission or TIS
Corporation; and
(c) an appointment referred to in
clause 5 of Schedule 1; and
(d) a contract referred to in clause 6
of Schedule 1;
"document" means a document, or part of a
document -
(a) that was in force immediately
before the transfer day; and
(b) that relates to a transferring asset,
transferring liability, transferring
contract or transferring employee;
and
(c) in which there is a reference -
35
Irrigation Company Act 2011
Act No. of
s. 33 Part 4 - Transfer of Assets, &c., and Employees to or from Company
(i) in relation to that
transferring asset,
transferring liability or
transferring contract, to
the transferor, or transfer
recipient; or
(ii) in relation to that
transferring employee, to
the Commission or TIS
Corporation -
but does not include a contract of
employment.
(2) Unless the context or subject matter of a
document requires otherwise, on and after the
relevant day of transfer a reference in the
document to the transferor is taken, where
appropriate, to be or include a reference to the
transfer recipient.
33. Continuation and institution of proceedings, &c.
On and after the relevant day of transfer -
(a) legal or other proceedings instituted by
or against the transferor in relation to a
transferring asset, transferring liability,
transferring contract or transferring
employee before, and pending on, the
relevant day of transfer may be continued
by or against the transfer recipient; and
36
Irrigation Company Act 2011
Act No. of
Part 4 - Transfer of Assets, &c., and Employees to or from Company s. 34
(b) any legal or other proceedings that,
immediately before the relevant day of
transfer, could have been instituted by or
against the transferor in relation to a
transferring asset, transferring liability,
transferring contract or transferring
employee may be instituted by or against
the transfer recipient; and
(c) a judgment or order of a court obtained
before the relevant day of transfer by or
against the transferor in proceedings
relating to a transferring asset,
transferring liability, transferring contract
or transferring employee may be
enforced by or against the transfer
recipient; and
(d) a document relating to legal or other
proceedings relating to a transferring
asset, transferring liability, transferring
contract or transferring employee that has
been served on or by the transferor
before the relevant day of transfer is
taken, where appropriate, to have been
served on or by the transfer recipient.
34. Contracts
A party to a transferring contract is not entitled
to terminate that contract, claim that there has
been a breach or default of contract or claim any
remedy by reason only of the transfer of that
contract to the Company or the Crown under
section 29 or 30.
37
Irrigation Company Act 2011
Act No. of
s. 35 Part 4 - Transfer of Assets, &c., and Employees to or from Company
35. Removing doubt relating to transfer
(1) In this section -
"contract" means a contract, agreement,
arrangement, undertaking or part of a
contract, agreement, arrangement or
undertaking, but does not include a
contract of employment;
"contract of employment" includes -
(a) a secondment arrangement; and
(b) an appointment as a director of
the Commission or TIS
Corporation; and
(c) an appointment referred to in
clause 5 of Schedule 1; and
(d) a contract referred to in clause 6
of Schedule 1;
(2) If there is any doubt -
(a) as to whether any asset, liability or
contract, or any part of any asset, liability
or contract, is vested in or transferred to
the Company or the Crown under
section 29 or 30; or
(b) as to whether any contract or other
document relates to any asset, liability or
contract that is transferred to the
Company or the Crown under section 29
or 30 -
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Irrigation Company Act 2011
Act No. of
Part 4 - Transfer of Assets, &c., and Employees to or from Company s. 35
the Minister is to determine the matter.
(3) On determining a matter, the Minister is provide
written notice of that determination to each of
the following persons:
(a) the transferor;
(b) the transfer recipient;
(c) a person who brought the matter to the
Minister for determination;
(d) a party to a contract if the Minister
considers it appropriate.
(4) The determination of the Minister under
subsection (2) is final and binding.
39
Irrigation Company Act 2011
Act No. of
s. 36 Part 5 - Miscellaneous
PART 5 - MISCELLANEOUS
36. Application of Corporations Act
To the extent that a provision of this Act is
incapable of concurrent operation with the
Corporations Act, that provision is declared to be
a displacement provision for the purposes of
section 5G of the Corporations Act.
37. Protection for acts done under this Act
Any thing done or omitted in good faith that is
done or omitted under, or authorised by, this Act
does not, except as otherwise expressly provided
by or under this Act or as provided or agreed by
the person doing or omitting the thing -
(a) terminate a contract, other instrument or
obligation; or
(b) give rise to a right to terminate a
contract, other instrument or obligation
by fulfilling a condition or in any other
manner; or
(c) release a surety or other obligee wholly
or in part from an obligation; or
(d) give rise to any right or remedy by a
party to a contract or other instrument; or
(e) constitute a breach of a contract or other
instrument; or
40
Irrigation Company Act 2011
Act No. of
Part 5 - Miscellaneous s. 38
(f) constitute a civil or criminal wrong; or
(g) constitute a breach of confidence.
38. Delegation by Minister
The Minister, in writing, may delegate to any
person any of his or her powers or functions
under this Act, other than this power of
delegation.
39. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may -
(a) provide for arrangements for transferring
employees or persons who may become
transferring employees; and
(b) provide for the deregistration of TIS
Corporation under the Corporations Act.
(3) Without limiting the generality of subsection (1),
the regulations may modify the Land Acquisition
Act 1993 in its application to the acquisition of
land under section 28, but the regulations cannot
affect the monetary entitlements of persons from
whom land is so acquired.
(4) The regulations may be made so as to apply
differently according to matters, limitations or
41
Irrigation Company Act 2011
Act No. of
s. 40 Part 5 - Miscellaneous
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(5) The regulations may authorise any matter to be
from time to time approved, determined, applied
or regulated by the Minister or the Treasurer.
(6) The regulations may -
(a) provide for savings or transitional
matters necessary or expedient for
bringing this Act, or a transfer notice,
into operation; and
(b) provide for any of those savings or
transitional matters to take effect when
this Act commences or on a later day
specified in the regulations, whether the
day so specified is before, on or after the
day on which the regulations are made.
40. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Primary Industries and
Water; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Primary
Industries, Parks, Water and
Environment.
42
Irrigation Company Act 2011
Act No. of
Part 5 - Miscellaneous s. 41
41. Savings and transitional provisions
The savings and transitional provisions set out in
Schedule 1 have effect.
42. Repeal and revocation of Rivers and Water Supply
Commission Act 1999 and proclamation under that
Act
(1) On the day fixed by proclamation under
subsection (2) -
(a) the Rivers and Water Supply Commission
Act 1999 is repealed; and
(b) the Proclamation under the Rivers and
Water Supply Commission Act 1999
(S.R. 1999, No. 172) is revoked.
(2) On the recommendation of the Minister, the
Governor, by proclamation, may fix the day on
which -
(a) the Rivers and Water Supply Commission
Act 1999 is repealed; and
(b) the Proclamation under the Rivers and
Water Supply Commission Act 1999
(S.R. 1999, No. 172) is revoked.
(3) Before making a recommendation for the
purpose of subsection (2), the Minister is to be
satisfied that, in respect of the financial year
ending on 30 June 2011 -
43
Irrigation Company Act 2011
Act No. of
s. 43 Part 5 - Miscellaneous
(a) the Board of Directors of the
Commission has -
(i) prepared and forwarded to the
Auditor-General a copy of its
financial statements as required
by section 52 of the Government
Business Enterprises Act 1995;
and
(ii) prepared and provided to the
Minister its annual report as
required by section 55 of that
Act; and
(b) the Commission and TIS Corporation
have paid any income tax equivalent,
guarantee fee and dividend as required
under Parts 10 and 11 of the Government
Business Enterprises Act 1995; and
(c) TIS Corporation has been deregistered.
43. Deregistration of TIS Corporation
(1) The Minister may apply, or may require the
Commission or TIS Corporation to apply, for the
deregistration of TIS Corporation under section
601AA of the Corporations Act if -
(a) TIS Corporation has paid any income tax
equivalent in respect of the financial year
ending on 30 June 2011 as required by
Part 10 of the Government Business
Enterprises Act 1995; and
44
Irrigation Company Act 2011
Act No. of
Part 5 - Miscellaneous s. 43
(b) the Board of Directors of TIS
Corporation has done everything
necessary to enable the Board of
Directors of the Commission to comply
with sections 52 and 55 of the
Government Business Enterprises Act
1995.
(2) A requirement under subsection (1) is to be in
writing.
(3) The Commission or TIS Corporation is to
comply with a requirement under subsection (1).
45
Irrigation Company Act 2011
Act No. of
sch. 1
SCHEDULE 1 - SAVINGS AND TRANSITIONAL
PROVISIONS
Section 41
PART 1 - PRELIMINARY
1. Interpretation
In this Schedule -
"repeal day" means the day fixed by
proclamation under section 42(2).
PART 2 - COMMISSION, TIS CORPORATION AND
EMPLOYEES
2. Functions of Commission
On and after the transfer day, the Commission is
not to perform the functions specified in section
6 of the Rivers and Water Supply Commission
Act 1999.
3. Abolition of Commission
(1) On the repeal day, the Commission is abolished.
(2) The appointment of a person as a director or
chief executive officer of the Commission is
revoked on the repeal day.
46
Irrigation Company Act 2011
Act No. of
sch. 1
(3) A person is not entitled to any compensation or
other payment in respect of the revocation of an
appointment under subclause (2) despite
anything to the contrary in his or her instrument
of appointment.
4. Directors of TIS Corporation
(1) The appointment of a person as a director of TIS
Corporation is revoked on the day on which the
TIS Corporation is deregistered under section
601AA of the Corporations Act.
(2) A person is not entitled to any compensation or
other payment in respect of the revocation of an
appointment under subclause (1) despite
anything to the contrary in his or her instrument
of appointment.
5. Chief executive officer of TIS Corporation
(1) In this clause -
"appointment" means the appointment of a
transferring employee as chief executive
officer of TIS Corporation.
(2) The appointment is revoked on the transfer day.
(3) The transferring employee is not entitled to any
compensation or other payment in respect of the
revocation of the appointment under
subclause (2) despite anything to the contrary in
the instrument of appointment.
47
Irrigation Company Act 2011
Act No. of
sch. 1
(4) The revocation of the appointment under
subclause (2) does not affect the application of
section 31 to the transferring employee.
(5) However, the Company is to enter into a contract
of employment with the transferring employee to
ensure that he or she -
(a) receives at least the same remuneration
as he or she was receiving immediately
before the transfer day; and
(b) is employed on the same or better
conditions, other than in relation to his or
her position in the Company, as applied
to him or her immediately before the
transfer day; and
(c) retains, and is entitled to claim against
the Company, all accrued entitlements
under the appointment.
6. Employees of TIS Corporation
(1) In this clause -
"contract" means the contract between a
transferring employee and TIS
Corporation under which the transferring
employee was entitled to remuneration in
excess of that which he or she was
entitled to receive as a State Service
employee or State Service officer.
(2) A contract is terminated on the transfer day.
48
Irrigation Company Act 2011
Act No. of
sch. 1
(3) A transferring employee is not entitled to any
compensation or other payment in respect of the
termination of his or her contract under
subclause (2) despite anything to the contrary in
the contract.
(4) The termination of a contract under
subclause (2) does not affect the application of
section 31 to the transferring employee.
(5) However, the Company is to enter into a contract
of employment with the transferring employee to
ensure that he or she -
(a) receives at least the same remuneration
as he or she was receiving immediately
before the transfer day; and
(b) is employed on the same or better
conditions, other than in relation to his or
her position in the Company, as applied
to him or her immediately before the
transfer day; and
(c) retains, and is entitled to claim against
the Company, all accrued entitlements
under the contract.
PART 3 - THE COMPANY
7. Existing Board
The appointments of the members of the board
of directors of the Company that was in
existence immediately before the transfer day
49
Irrigation Company Act 2011
Act No. of
sch. 1
continue according to their terms and are taken
to have been made under section 23(2).
8. Water districts
If immediately before the transfer day the
Commission or TIS Corporation was the
responsible water entity for the purposes of the
administration of a water district under the
Water Management Act 1999, the Company is
taken to have been approved, under Part 9 of that
Act and subject to the same conditions to which
the Commission was subject, to administer that
water district.
9. Permits under Water Management Act 1999 and
Land Use Planning and Approvals Act 1993
(1) If immediately before the transfer day the
Commission or TIS Corporation held a permit
granted under Division 4 of Part 8 of the Water
Management Act 1999, the Company is taken to
have been granted a permit in the same terms,
and subject to the same conditions, under that
Division of that Act.
(2) If the Commission or TIS Corporation applied
for a permit under Division 4 of Part 8 of the
Water Management Act 1999 but that application
has not been determined before the transfer day,
that application is taken to have been made by
the Company.
50
Irrigation Company Act 2011
Act No. of
sch. 1
(3) If immediately before the transfer day the
Commission or TIS Corporation held a permit
granted under the Land Use Planning and
Approvals Act 1993, the Company is taken to
have been granted such a permit in the same
terms, and subject to the same conditions, under
that Act.
10. Licences and other authorities under Water
Management Act 1999
(1) If immediately before the transfer day the
Commission or TIS Corporation held a licence
or other authority granted, issued or otherwise
given under Part 6 of the Water Management Act
1999, the Company is taken to have been
granted, issued or otherwise given such a licence
or authority in the same terms, and subject to the
same conditions, under that Part of that Act.
(2) If the Commission or TIS Corporation made an
application for or in respect of a licence or other
authority under Part 6 of the Water Management
Act 1999 but that application has not been
determined before the transfer day, that
application is taken to have been made by the
Company.
11. Other permits, licences and authorities
(1) If immediately before the transfer day the
Commission or TIS Corporation held a permit,
licence or other authority granted, issued or
51
Irrigation Company Act 2011
Act No. of
sch. 1
otherwise given under an Act, or a provision of
an Act, that is not referred to in clause 9 or 10,
the Company is taken to have been granted,
issued or otherwise given a permit, licence or
other authority in the same terms, and subject to
the same conditions, under that Act or that
provision.
(2) If the Commission or TIS Corporation applied
for a permit, licence or other authority under an
Act, or a provision of an Act, that is not referred
to in clause 9 or 10 but that application has not
been determined before the transfer day, that
application is taken to have been made by the
Company.
12. Environment protection notices
(1) If immediately before the transfer day the
Commission or TIS Corporation was bound by
an environment protection notice within the
meaning of the Environmental Management and
Pollution Control Act 1994 -
(a) the Commission or TIS Corporation is to
provide that notice to the Company; and
(b) the Company is taken to have been
served with that notice, and is taken to be
bound by that notice, under the
Environmental Management and
Pollution Control Act 1994.
(2) Nothing in subclause (1) affects -
52
Irrigation Company Act 2011
Act No. of
sch. 1
(a) the obligation of the Commission or TIS
Corporation to comply with section 45(1)
of the Environmental Management and
Pollution Control Act 1994; or
(b) the operation of section 45(2) of that Act.
13. Company to assist Commission and TIS
Corporation
(1) After the transfer day, the Company is to provide
all assistance necessary to the Commission to
enable it and its board of directors to fulfil their
obligations under this Act or the Rivers and
Water Supply Commission Act 1999.
(2) After the transfer day, the Company is to provide
all assistance necessary to TIS Corporation to
enable it and its board of directors to fulfil their
obligations under this or another Act or the
Corporations Act.
PART 4 - BY-LAWS UNDER IRRIGATION CLAUSES
ACT 1973
14. By-laws made by Commission or TIS Corporation
under Irrigation Clauses Act 1973
(1) The following by-laws made by the Commission
under section 46 of the Irrigation Clauses Act
1973 are taken to have been made by the
Company:
53
Irrigation Company Act 2011
Act No. of
sch. 1
(a) Coal River Irrigation Water District By-
laws 2002 (S.R. 2002, No. 165);
(b) Meander Valley Irrigation District By-
laws 2008 (S.R. 2008, No. 146);
(c) South-East Irrigation Water District
Stage 2 By-laws 2004 (S.R. 2004, No.
136).
(2) The following by-laws made by TIS Corporation
under section 46 of the Irrigation Clauses Act
1973 and published in the Gazette on
12 January 2011 are taken to have been made by
the Company:
(a) Caveside-Dairy Plains Irrigation District
By-laws 2011;
(b) Hagley Irrigation District By-laws 2011;
(c) Quamby-Osmaston Irrigation District
By-laws 2011;
(d) Rubicon Irrigation District By-laws
2011.
(3) The River Clyde Irrigation District By-laws
2005 (S.R. 2005, No. 111) made by the
Commission under section 46 of the Irrigation
Clauses Act 1973 are taken to have been made
by Shannon Clyde Water Company (ACN
132 740 437).
(4) The Winnaleah Irrigation Water District By-
laws 2002 (S.R. 2002, No. 166) made by the
Commission under section 46 of the Irrigation
54
Irrigation Company Act 2011
Act No. of
sch. 1
Clauses Act 1973 are taken to have been made
by Winnaleah Irrigation Scheme Ltd (ACN
107 004 759).
Government Printer, Tasmania 55