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IRRIGATION COMPANY BILL 2011
CLAUSE NOTES
Clause 1 The Short Title of the Act is the Irrigation Company Act 2011.
Clause 2 Several provisions of this Act commence on Royal Assent, the
remainder commence on Transfer Day.
Clause 3 This Act provides for relevant matters relating the control and
operation of a single State-owned irrigation company, that is
Tasmanian Irrigation Pty Ltd. It also provides for the transfer of
assets, liabilities, contracts, and employees of the Rivers and Water
Supply Commission and Tasmanian Irrigation Schemes Pty Ltd to
the new single State-owned irrigation company.
The Act also provides for the transfer of assets and liabilities from
the Crown and councils to the Company.
Clause 4 This Clause defines terms that are used in the Act to aid in ensuring
their correct interpretation.
Clause 5 The application of the Act extends to any subsidiary of the Company
as if the subsidiary were the Company.
Clause 6 This Clause specifies that the Minister for Primary Industries and
Water may determine, by order, a Transfer Day that is later than 1
July 2011. Clause 4 defines the Transfer Day (that is, the day on
which assets, liabilities and contracts transfer to the new company)
as 1 July 2011.
Clause 7 The principal objectives of the Company are to develop, own and
operate irrigation schemes in Tasmania, in an efficient and effective
manner.
Clause 8 This Clause clarifies that the Company's Constitution must be
consistent with the Act, which includes having the same objectives
as outlined in the Act.
This Clause also requires the:
Board to provide the Minister for Primary Industries and
Water with a copy of the Company's Constitution as soon as
practicable after the commencement of the Act; and
the Minister to table the Constitution in both Houses of
Parliament within seven sitting days of receiving it.
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Clause 9 The Company is to have two shareholders (members), one being
the Minister for Primary Industries and Water and the other being
the Treasurer.
In the event that the Treasurer is also the Minister for Primary
Industries and Water, the second member will be another Minister
as determined by the Minister for Primary Industries and Water.
Clause 10 The members of the Company are to hold the shares of the
Company in trust for the Crown and must not acquire shares for
their own benefit.
Any shares acquired in contravention of this clause are still
considered to be held in trust for the Crown although the Crown will
not be liable for any cost incurred in their acquisition.
Clause 11 Subject to agreement between the Company and its members,
further shares can be issued to the members in exchange for:
money appropriated by Parliament;
the transfer of assets; or
any other consideration agreed to between the Company and
the members.
Clause 12 The Company, or a subsidiary of the Company, does not represent
the Crown and is not exempt from any rates, tax, duty or impost
under any law because it is owned by the Crown, unless expressly
provided for in legislation.
Further, the Crown is not responsible for any liability or obligation of
the Company or a subsidiary, except where the Treasurer has
provided a guarantee or indemnity as provided for in section 16 of
the Act.
Clause 13 The Company must comply with all Treasurer's Instructions issued
under section 114 of the Government Business Enterprises Act
1995, unless the Treasurer provides a specific exemption.
Clause 14 The auditor appointed for the Company and any subsidiaries is the
Auditor-General.
Clause 15 The Company and any subsidiaries may only borrow from the
Tasmanian Public Finance Corporation, unless the Treasurer
approves alternative arrangements.
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Clause 16 The Company or a subsidiary of the Company may make a written
request to the Treasurer to provide a guarantee or indemnity in
relation to the repayment of any loan (including interest and other
charges) or the performance of an obligation (monetary or
otherwise).
The Treasurer is to use money provided by Parliament to make any
payments required as a result of a guarantee or indemnity provided
under this section.
This section applies irrespective of whether the loan or obligation
was entered into in Tasmania or elsewhere.
Clause 17 The Company and any subsidiaries of the Company are subject to
the guarantee fee arrangements established under Division 1, Part
11 of the Government Business Enterprises Act 1995.
Clause 18 The Company and any subsidiaries of the Company are subject to
the income tax equivalent arrangements established under the
provisions of Part 10 of the Government Business Enterprises Act
1995.
Clause 19 The Company and any subsidiaries are prohibited from establishing
a superannuation scheme, but may contribute to superannuation
schemes complying with Commonwealth superannuation law.
This Clause also enables the company to contribute to the
Retirement Benefit Fund (RBF) on behalf of the employees that
contributed to RBF immediately before transfer day. This ensures
that the employee's superannuation entitlements continue to be
operative as if the employee was still a State Service Employee.
The Company must comply with instructions, received by written
notice, from the Minister responsible for the Retirement Benefit Act
1993.
Clause 20 The long service leave entitlements of an employee that transfers
from the TIS Corporation to the new company on Transfer Day
remain the same and continue as if the employee was still a State
Service Employee.
Clause 21 This Clause provides for the Treasurer to specify certain financial
arrangements that the company cannot enter into.
The Clause also requires the company to comply with relevant
Treasurer's Instructions.
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Clause 22 The Company and any subsidiaries must comply with any
requirement imposed by the Treasurer under section 5(1) of the
Financial Agreement Act 1994. This Act relates to the
implementation of a financial agreement entered into between
Tasmania, all other State and Territory Governments, and the
Australian Government.
Clause 23 It is the responsibility of the members of the Company to ensure that
the appointed Board of Directors collectively has the skills and
experience necessary for the Company to achieve its stated
objectives.
It is also the responsibility of the members to appoint the Board in
accordance with the Constitution.
Clause 24 The members' statement of expectations is an important
governance document for the Company. The members will provide
the Board with a statement of expectations as soon as practicable
after the commencement of this Act.
The statement of expectations is to specify the members' view for
the Company's strategic priorities and set out the policy
expectations of the members for the performance of the Company
and any subsidiaries.
The members may amend or replace the statement of expectations
but must consult the Board when preparing or amending the
statement.
Clause 25 The Board must submit a corporate plan to the members each
financial year, and it is to be prepared in the context of relevant
Treasurer's Instructions and the statement of expectations. The
Company must comply with its corporate plan.
Clause 26 The Board is responsible for providing the members with annual
financial statements and reports consistent with those required
under the Corporations Act 2001 (Commonwealth).
For public accountability, the Minister must table the documents in
Parliament within seven sitting days of receiving them.
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Clause 27 The members can direct the Company to perform activities that are
in the public interest that may not be in the Company's financial best
interests. The members can also direct the Company to cease
performing such an activity, or to cease performing any activity that
the members do not consider to be in the public interest.
A direction made under this section must be provided to the
Company in writing, and the Company must comply with a direction.
The Company is entitled to receive compensation if it satisfies the
members that it has or will be financially disadvantaged by its
compliance with a direction issued under this section. The amount
of any compensation will be determined by the Treasurer.
Clause 28 This Clause provides for the company to acquire land by
compulsory process under the Land Acquisition Act 1993 if it does
so in accordance with the Water Management Act 1999. In general,
this means that the company can undertake compulsory land
acquisition once a Water District has been declared.
This Clause also provides for the company to acquire land by
compulsory process under the Land Acquisition Act 1993, if it has
the consent of the Minister.
This Clause provides for the company to acquire an easement in
gross and covenant in gross as provided for in the Conveyancing
and Law of Property Act 1884.
Clause 29 This Clause transfers assets, rights, liabilities and contracts from the
Rivers and Water Supply Commission and Tasmanian Irrigation
Schemes Pty Ltd to the company, on transfer day.
Once the transfer takes effect, the transfer recipient is taken to have
made any specified contracts, in place of the transferor, regardless
of any contrary provision in a specified contract.
This Clause also provides for the Rivers and Water Supply
Commission to retain ownership of the share it owns in Tasmanian
Irrigation Schemes Pty Ltd.
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Clause 30 This Clause provides for the transfer of irrigation infrastructure and
related assets, liabilities and contracts from the Crown to the
Company (and vice versa) by way of a transfer notice published in
the Gazette.
The Minister may also transfer assets, liabilities and contracts from
a Council to the Company, if the Council provides consent.
The transfer notice may include any terms and conditions necessary
or incidental to the transfer.
Once the transfer takes effect, the transfer recipient is taken to have
made any specified contracts, in place of the transferor, regardless
of any contrary provision in a specified contract.
The Minister has discretion to either amend or revoke a transfer
notice.
State tax is not payable in respect to any document which is
prepared to give effect to a notice of transfer.
Clause 31 Before the transfer day the Minister is to notify relevant State
Service Employees that their secondment agreement with the TIS
Corporation or the Commission will transfer to the new company.
The secondment arrangements will continue with the new company
with the same terms and conditions.
The Company may determine a position description, title, role or
duties for the transferred employee, which may differ from those
related to the employee's service with the TIS Corporation or the
Commission.
Clause 32 From the transfer day, any reference to the transferor in a document
is taken, where appropriate, to be a reference to the transfer
recipient.
Clause 33 From the transfer day any legal obligation arising from legal
proceedings, court judgments or contracts of or related to the
transferor is taken, where appropriate, to be instead a reference to,
or legal obligation of, the transfer recipient.
On the transfer day the transferor is discharged from any obligations
relating to a transferring liability.
Clause 34 This Clause states that a party to a contract is not entitled to
terminate that contract, allege that there has been a breach or claim
any remedy solely on the grounds that the contract has transferred
from one party to another.
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Clause 35 If there is any doubt as to what irrigation infrastructure and related
assets, liabilities or contracts are transferred the Minister for Primary
Industries and Water can determine the matter, and his decision is
final and binding.
The Minister must provide notice of his determination to: the
transferor; transfer recipient; the person who sought the
determination; and, where appropriate, any parties to a contract.
Clause 36 This Clause clarifies that where this Act is inconsistent with the
Corporations Act 2001, the specific provisions in this Act prevail.
Clause 37 This Clause ensures that if anything is done or omitted, in good
faith, as authorised by this Act it does not mean that a relevant
contract or obligation could be deemed to be invalid nor does it
constitute a civil or criminal wrong.
Clause 38 The Minister has the power to delegate any of his powers or
functions under the Act, except for the power of delegation itself.
Clause 39 The Governor may make regulations relating to this Act. These are
general regulatory powers for the Minister and Treasurer to ensure
effective implementation of the restructure of the irrigation
businesses, and so that the legislative framework of the company
can be kept in line with contemporary practices and requirements.
Regulations can be made for a broad range of matters, including:
arrangements for employees affected by a transfer of
employment related to this Act;
deregistration of Tasmanian Irrigation Schemes Pty Ltd;
modifying the Land Acquisition Act 1993 in its application to the
acquisition of land, but cannot affect the monetary entitlement
provisions of the compensated persons;
any matter to be approved from time to time by the Minister or
Treasurer.
Clause 40 The Act is administered by the Minister for Primary Industries and
Water, with the Department of Primary Industries, Parks, Water and
Environment being the responsible department.
Clause 41 This Clause gives effect to the savings and transitional provisions
set out in Schedule 1. Schedule 1 addresses a range of transitional
arrangements, such as those relating to the Directors and Staff of
the TIS corporation and the Commission.
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Clause 42 This Clause provides for the Rivers and Water Supply Commission
Act 1999 to be repealed on a day set by the Governor, on
recommendation from the Minister.
Before repealing the Act the Minister must be satisfied that the:
Directors of the Commission have prepared and forwarded a
copy of financial statements to the Auditor-General and the
annual report to the Minister;
All relevant taxes, dividends, and guarantee fees have been
paid by the TIS Corporation and the Commission; and
The TIS Corporation has been deregistered.
Clause 43 The Minister may apply, or require the TIS Corporation or the
Commission to apply, to deregister the TIS Corporation, if three
requirements under the Government Business Enterprise Act 1995
have been fulfilled:
the TIS Corporation has paid income tax equivalents for the
financial year ending on 30 June 2011;
the financial statements have been prepared and forwarded
to the Auditor-General; and
the annual report has been prepared and forwarded to the
Minister.
The Minister's request to the TIS Corporation or the Commission to
apply to deregister the TIS Corporation, must be made in writing.
SCHEDULE 1 SAVINGS AND TRANSITIONAL PROVISIONS
SCHEDULE 1 This Clause clarifies that the `repeal day' for the Rivers and Water
Clause 1 Supply Act 1999 is set by the Governor on recommendation from
the Minister
SCHEDULE 1 The Commission is to cease performing any functions as specified
Clause 2 in the Rivers and Water Supply Act 1999 on and after the transfer
day.
SCHEDULE 1 The Commission is to be abolished on the `repeal day'. Any
Clause 3 appointments as a Director or Chief executive Officer are revoked
on `repeal day'.
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SCHEDULE 1 The appointments of directors to the TIS Corporation are revoked
Clause 4 on the day on which the TIS Corporation is deregistered.
The directors to the TIS Corporation are not entitled to
compensation in respect of their revocation of appointment.
SCHEDULE 1 The appointment of the Chief Executive Officer of the TIS
Clause 5 Corporation is revoked on transfer day.
The Chief Executive Officer of the TIS Corporation is not entitled to
any compensation on revocation of his appointment.
However, the secondment agreement that the Chief Executive
Officer of the TIS Corporation had prior to transfer day will transfer
to the company. Furthermore the company is to enter to an
agreement with the transferring employee to ensure that he:
receives at least the same level of pay as he was receiving
immediately before transfer day;
is employed on the same of better conditions as he was
receiving immediately before transfer day; and
retains all accrued entitlements.
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SCHEDULE 1 This Clause primarily addresses a situation where an employee of
Clause 6 the TIS Corporation is receiving a higher duties allowance, which
would be ignored if only the terms and conditions of the secondment
agreement were transferred to the new company.
The Clause terminates, on transfer day, any contract that staff
members have with the TIS Corporation, which provides for
remuneration above the amount stated in their secondment
agreement.
The affected staff member of the TIS Corporation is not entitled to
any compensation on termination of these contracts.
However, the secondment agreement that the transferred employee
of the TIS Corporation had prior to transfer day will transfer to the
company. Furthermore, the company is to enter to an contract with
the transferring employee to ensure that they:
receive at least the same level of pay as they were receiving
immediately before transfer day;
are employed on the same of better conditions as they were
receiving immediately before transfer day;
retain all accrued entitlements.
SCHEDULE 1 This Clause provides for the directors that were directors of the
Clause 7 Company immediately prior to transfer day to continue according to
their terms of appointment, in accordance with relevant sections of
the Act and the Constitution.
SCHEDULE 1 This Clause transfers the Responsible Water Entity status and
Clause 8 obligations from the TIS Corporation and Commission to the
company on transfer day.
SCHEDULE 1 This Clause transfers any permits (such as dam permits granted
Clause 9 under the Water Management Act 1999; or planning permits granted
under the Land Use Planning and Approvals Act 1993) held by the
TIS Corporation and Commission to the company on transfer day.
This Clause also provides for any permit application that the TIS
Corporation and Commission applied for before transfer day, in
relation to the Water Management Act 1999, to be deemed to have
been applied for by the Company.
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SCHEDULE 1 This Clause transfers any water licences or temporary water
Clause 10 allocations (as granted under the Water Management Act 1999)
held by the TIS Corporation and Commission to the company on
transfer day.
This Clause also provides for any water licence or temporary water
allocations (as granted under the Water Management Act 1999) that
the TIS Corporation and Commission applied for before transfer day
to be deemed to have been applied for by the Company.
SCHEDULE 1 This Clause transfers all permits, licences, and authorities (that are
Clause 11 not specifically mentioned in this Act) held by the TIS Corporation
and Commission to the company on transfer day.
This Clause also provides for all permits, licences, and authorities
(that are not specifically mentioned in this Act) that the TIS
Corporation and Commission applied for before transfer day to be
deemed to have been applied for by the Company.
SCHEDULE 1 This Clause provides for the transfer of Environmental Protection
Clause 12 Notices, and associated obligations, from the TIS Corporation and
Commission to the Company.
SCHEDULE 1 This Clause ensures that the Company provides all necessary
Clause 13 assistance to the directors of the TIS Corporation and Commission,
on and after transfer day, (because all staff will be transferred on
transfer day) to ensure that they can fulfil their responsibilities
before their businesses are deregistered and abolished respectively.
SCHEDULE 1 This Clause ensures that the by-laws that have been made by the
Clause 13 TIS Corporation and Commission in respect to certain irrigation
districts transfer to the Company on transfer day.
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