Port Companies Act 1997 An Act to establish companies to provide port and shipping facilities and services in Tasmania and for related purposes [Royal Assent 27 June 1997] 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 Port Companies Act 1997 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act – appropriate company, in relation to a former board, means – (a) the company that is formed to replace that former board; or (b) a subsidiary of a company, being a subsidiary that is formed to replace that former board; asset includes any business or property; Board means the Board of Directors as constituted under section 11 or 12 ; commencement day means the day proclaimed under section 2 ; company means a company formed under section 5 ; Crown land means land as defined in the Crown Lands Act 1976 ; designated airport means an airport declared to be a designated airport under section 4 ; director means – (a) an initial director; and (b) a subsequent director; former Act means the Marine Act 1976 ; former board means a marine board under the former Act; incorporation day means the day on which a company is incorporated; initial director means a director referred to in section 11 ; liability includes any liability, duty and obligation, whether actual, contingent or prospective; member of a company means a member referred to in section 9 ; port includes a designated airport; principal objectives means the objectives of a 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; right includes any right, power, privilege and immunity, whether actual, contingent or prospective; subsequent director means a person appointed as a director under section 12 ; subsidiary has the same meaning as in the Corporations Act; transfer day means the day on which a transfer under Division 3 of Part 2 takes effect. 4. Designated airport The Minister, by order, may declare an airport to be a designated airport for the purpose of this Act. PART 2 - Companies Division 1 - Formation of companies 5. Formation of company The Minister may form, or participate in the formation of, a company limited by shares that is to be incorporated under the Corporations Law to perform functions relating to the operation of a port. 6. Name of company The name of a company on its incorporation is to include the word "Port" or "Ports". 7. Principal objectives of company The principal objectives of a company are – (a) to facilitate trade for the benefit of Tasmania; and (b) to operate its activities in accordance with sound commercial practice. 8. Memorandum and articles of company (1) The memorandum of association of a company is to include the principal objectives of the company. (2) The provisions of the memorandum and articles of association of a company are to be consistent with this Act. 9. Members of company (1) The members of a company are 2 persons of whom – (a) one is the Minister; and (b) one is the Minister responsible for the administration of the Government Business Enterprises Act 1995 . (2) If the Minister referred to in subsection (1)(a) is the same person as the Minister referred to in subsection (1)(b) , the Minister may determine another Minister to be a member of a company. 10. Shares (1) The consideration for shares issued to the members of a company is to be – (a) any money provided by Parliament for that purpose; or (b) any interest in land transferred to the company under section 23 ; or (c) any assets or rights vested in the company under clause 8 of Schedule 1 ; or (d) any combination of the considerations specified in paragraphs (a) , (b) and (c) . (2) Shares issued to the members of a company are held by the members in trust for the Crown. 11. Initial directors (1) A company is to have a Board. (2) On the incorporation day of the appropriate company, the members of the company are to appoint, for a period of 3 years – (a) the persons holding office as wardens of the former board as the initial directors of the Board of that company; and (b) the person holding office as master warden of the former board as chairperson of that Board. (3) If an initial director vacates office before the end of the period of 3 years, the Board – (a) may request the members of the company to appoint under section 12 a suitable person to replace that director for the balance of that period if the directors of that Board number 4 to 8 inclusive after that vacation; or (b) must make such a request if the directors of that Board number less than 4 after that vacation. 12. Subsequent directors (1) At least 6 months before the end of the period referred to in section 11(2) and whenever a vacancy arises after the end of that period, the Minister is to establish a panel in respect of a company consisting of – (a) the chairperson of the Board of the company as constituted under that section; and (b) the Secretary of the department responsible for the administration of the State Policies and Projects Act 1993 ; and (c) the Secretary of the department responsible for the administration of the Government Business Enterprises Act 1995 ; and (d) the Secretary of the responsible department. (2) A Board may submit to the panel a list of names of persons it considers suitable for appointment as subsequent directors and chairperson of that Board. (3) The panel is to submit to the members of a company a list of names of persons suitable for appointment as subsequent directors and chairperson of that Board of the company. (4) The Board of a company is to consist of at least 4 and not more than 8 persons appointed by the members of the company. (5) A director of a Board of one company is not eligible to be appointed as director of a Board of another company at the same time. 13. Status of company (1) Unless this or any other Act expressly provides otherwise, a company or a subsidiary of a company – (a) is not, and does not represent, the Crown; and (b) is not exempt from any rate, tax, duty or other impost imposed under any law merely because the Crown has beneficial ownership of shares in it. (2) The Crown is not liable for any liability or obligation of a company or subsidiary of a company unless the Treasurer gives a guarantee or indemnity under section 18 . 14. Delegation by Board The Board, in writing, may delegate to any person any of its powers or functions under this Act, other than this power of delegation. 15. 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. Division 2 - Financial provisions 16. Accounts and report of company (1) The Board of a company is to provide the Minister with copies of the following: (a) the memorandum and articles of association of the company and each of its subsidiaries and any amendments to those memorandums or articles; (b) any financial statement, directors' report or auditor's report and the annual return for the company and each of its subsidiaries as required by the Corporations Act. (2) The Minister is to cause to be laid before each House of Parliament the copies referred to in subsection (1) within 7 sitting days after receiving them. 17. Loan from Treasurer (1) The Treasurer may lend to a company or any of its subsidiaries, out of money provided by Parliament for the purpose, any money the Treasurer considers appropriate. (2) A loan is subject to any conditions the Treasurer determines. (3) An amount lent under subsection (1) and any interest or other charge payable in respect of the loan is a debt repayable by the company or subsidiary into the Public Account. 18. Guarantee or indemnity (1) On the written request of a company or its subsidiary, the Treasurer, in writing, may guarantee or give an indemnity in relation to, 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 subsidiary; or (b) the performance of an obligation undertaken by the company or subsidiary or which the company has agreed to undertake (whether that obligation is monetary or otherwise). (2) A guarantee or an indemnity – (a) may include a guarantee of, or an indemnity relating to, any interest and other charges payable in respect of money lent or agreed to be lent or in respect of or arising from an obligation undertaken or agreed to be undertaken; and (b) is subject to any conditions the Treasurer determines and specifies in the guarantee or indemnity. (3) The Treasurer is to make any required payment out of money provided by Parliament for the purpose. (4) This section has effect regardless of where the loan or obligation was undertaken, agreed to be undertaken or required to be repaid or performed. 19. Fees in respect of guarantee and indemnity The provisions of Division 1 of Part 11 of the Government Business Enterprises Act 1995 apply in relation to a company or its subsidiary as if – (a) the company or subsidiary were a Government Business Enterprise specified in Schedule 2 to that Act; and (b) a reference to financial accommodation in that Division were a reference to a financial benefit arising from a guarantee given under section 18 or clause 9 of Schedule 1 to this Act. 20. Tax equivalents The provisions of Part 10 of the Government Business Enterprises Act 1995 apply in relation to a company and a subsidiary of a company as if – (a) the company were a Government Business Enterprise specified in Schedule 2 to that Act; and (b) the subsidiary were a subsidiary within the meaning of that Act. 21. Treasurer's Instructions Any Treasurer's Instructions issued under the Government Business Enterprises Act 1995 providing for guidelines relating to the determination, calculation and payment of income tax equivalents and guarantee fees and other related matters apply to a company or its subsidiary as if the company or subsidiary were a Government Business Enterprise under that Act. 22. Effect of Financial Agreement Act 1994 If, under section 5(1) of the Financial Agreement Act 1994 , the Treasurer requires a company to do or refrain from doing anything for the purpose of implementing the Agreement, within the meaning of that Act, the company must comply with that requirement. Division 3 - Transfer of interest in land 23. Transfer of interest in land The Minister, with the agreement of the Minister administering the Government Business Enterprises Act 1995 and after consultation with the Minister administering the Crown Lands Act 1976 , may transfer any leasehold or freehold interest in land to a company or its subsidiary. 24. Operation of transfer A transfer under section 23 does not – (a) operate as a breach or default of a contract; or (b) operate as a breach of confidence; or (c) operate as a civil wrong; or (d) give rise to any remedy because of a change in ownership. 25. Non-application of Crown Lands Act 1976 Sections 6 and 64 of the Crown Lands Act 1976 do not apply to a transfer under section 23 . 26. Tax not payable Any tax, duty, fee or charge under any law of Tasmania is not payable in respect of – (a) a transfer under section 23 ; or (b) anything the Minister certifies as having been done as a consequence of that transfer. PART 3 - Miscellaneous 27. Arrangements with Minister (1) The Minister, with the approval of the Treasurer and the Board of a company, may enter into an agreement under which the company or its subsidiary agrees to perform, or to cease to perform, activities. (2) The terms of the agreement may provide for reimbursement to the company or its subsidiary out of money provided by Parliament for the purpose. 28. Application of certain provisions The specified provisions of the following Acts apply to a company or its subsidiary as if the company or subsidiary were a Government Business Enterprise: (a) Part 1 of Schedule 3 to the Stamp Duties Act 1931 ; (b) section 10 of the Land and Income Taxation Act 1910 . 29. Regulations (1) The Governor may make regulations for the purpose of this Act. (2) The regulations may – (a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and (b) in respect of such an offence, provide for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues. (3) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act. (4) A provision referred to in subsection (3) may take effect on and from the day on which this Act commences or a later day. 30. Transitional and savings provisions Schedule 1 has effect with respect to transitional and savings provisions. 31. 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 Transport; and (b) the department responsible to that Minister in relation to the administration of this Act is the Department of Transport. 32. Repeal (1) The Acts specified in Schedule 2 are repealed and any statutory rules or by-laws made under any of those Acts are rescinded or revoked. (2) The following regulations are rescinded: (a) State Jetties Regulations 1994 (S.R. 1994, No. 62); (b) State Jetties (Stanley Fishing Dock) Regulations 1996 (S.R. 1996, No. 48). SCHEDULE 1 - Transitional and savings provisions Section 30 1. Staff of former boards (1) Any person employed by a former board immediately before the commencement day is, on that day, transferred as an employee of the appropriate company. (2) The period of employment of a person referred to in subclause (1) is not broken because of being transferred as an employee of the appropriate company. (3) A person referred to in subclause (1) – (a) retains all rights and entitlements on being transferred to the appropriate company; and (b) is not entitled to any compensation in respect of that transfer. 2. Proceedings (1) Any proceedings instituted under the former Act that are not determined before the commencement day may, on or after that day, be determined under that Act. (2) Any proceedings instituted by or against a former board under any Act, other than the former Act, and not determined before the incorporation day may, on or after that day, be determined in respect of the appropriate company. (3) Any proceedings instituted under any regulations referred to in section 32(2) that are not determined before the commencement day may, on or after that day, be determined under those regulations. (4) Any proceedings instituted by or against a former board under any Act, other than the former Act, and not determined before the incorporation day may, on or after that day, be determined in respect of the appropriate company. (5) A judgment by order of a court obtained by or against a former board before the incorporation day of the appropriate company is, on that day, enforceable by or against the appropriate company. 3. Documents A document addressed to a former board before the incorporation day of the appropriate company may, on or after that day, be served on the appropriate company. 4. Contracts Any contract made by a former board before the incorporation day of the appropriate company and not performed or discharged before that day is, on that day, taken to have been made by the appropriate company. 5. Actions Any act done or omitted to be done before the incorporation day of the appropriate company by, to or in respect of a former board is taken to have been done or omitted to be done by, to or in respect of the appropriate company. 6. Accounts (1) Any account maintained in the name of a former board immediately before the incorporation day of the appropriate company is, on that day, taken to be an account in the name of the appropriate company. (2) Any funds in an account referred to in subclause (1) are, on the incorporation day of the appropriate company, taken to be funds of the appropriate company. 7. Auditor A person acting as auditor of a former board immediately before the incorporation day of the appropriate company continues, on that day, to act as auditor of the appropriate company until the members of that company appoint another person as an auditor for the appropriate company. 8. Assets, rights and liabilities (1) Any asset, right or liability, other than an interest in land referred to in section 23 , vested in a former board immediately before the incorporation day of the appropriate company is, subject to a determination under section 31 of the Marine and Safety Authority Act 1997 , on that day, vested in the appropriate company. (2) Any tax, duty, fee or charge under any law of Tasmania is not payable in respect of anything vested in an appropriate company under subclause (1) . (3) On the winding up of a subsidiary, any surplus assets vested in that subsidiary under subclause (1) vest in the Crown. 9. Guarantees and indemnities Any borrowings made by a former board under any of the Acts specified in Schedule 2 before the commencement day are, on that day, guaranteed by the Crown as if the Treasurer had given a guarantee under section 18 . 10. Tax equivalents (1) The provisions of Divisions 2 and 3 of Part XA of the former Act apply to a company or its subsidiary in respect of the calculation, determination and payment of an actual taxation equivalent for the financial year ending on 30 June 1997 as if it were a board under that Act. (2) The balance of any carry forward losses, within the meaning of the Income Tax Assessment Act 1936 of the Commonwealth, calculated in accordance with any guidelines issued by the Treasurer under the former Act and available at the commencement day are available to a company or its subsidiary. SCHEDULE 2 - Repeal Section 32 Burnie Marine Board Loan Act 1936 (No. 10 of 1936) Circular Head Marine Board Loan Act 1950 (No. 90 of 1950) Devonport Airport (Special Provisions) Act 1980 (No. 108 of 1980) Devonport Airport (Special Provisions) Amendment Act 1982 (No. 80 of 1982) Devonport MarineBoard Loan Act 1946 (No. 43 of 1946) Devonport Marine Board Loan Act 1953 (No. 43 of 1953) Flinders Marine Board Loan Act 1952 (No. 31 of 1952) Hobart Marine Board Loan Act 1947 (No. 73 of 1947) Iron Ore (Savage River) Agreements Act 1965 (No. 25 of 1965) King Island Marine Board Loan Act 1971 (No. 38 of 1971) King Island Port Facilities Agreement Act 1971 (No. 12 of 1971) Land Reclamation Act 1886 (No. 6 of 1886) Launceston Marine Board Loan Act 1951 (No. 64 of 1951) Marine Act 1976 (No. 18 of 1976) Marine Amendment Act 1986 (No. 47 of 1986) Marine Amendment Act 1989 (No. 20 of 1989) Marine Amendment Act 1993 (No. 36 of 1993) Marine Amendment (Amalgamation of Boards) Act 1996 (No. 39 of 1996) Marine Amendment (Electoral Provisions) Act 1994 (No. 38 of 1994) Marine Amendment (Port of Launceston Authority 1994 Elections) Act 1994 (No. 16 of 1994) Marine Board of Devonport (Special Powers) Act 1980 (No. 29 of 1980) Marine Board of Launceston Sub-Letting Act 1918 (No. 48 of 1918) Marine Boards (Validation of Elections) Act 1994 (No. 15 of 1994) Mersey Marine Board Loan Act 1936 (No. 55 of 1936) Mersey Marine Board Reclamation Act 1910 (No. 26 of 1910) Port Huon Wharf Act 1955 (No. 52 of 1955) Port of Hobart Reclamation Act 1954 (No. 10 of 1954) Wynyard Airport (Special Provisions) Act 1982 (No. 79 of 1982)