Western Australia
Electricity Corporations Act 2005
Western Australia
Electricity Corporations Act 2005
CONTENTS
Part 1 — Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
Part 2 — Electricity Corporations
Division 1 — Establishment of corporations
4. Corporations established 5
5. Corporations not agents of the State 5
6. Corporations and officers not part of Public Service 5
7. Head office of Regional Power Corporation 6
Division 2 — Boards of directors
8. Boards of directors 6
9. Role of boards 7
10. Provisions about the constitution and proceedings of boards 7
11. Remuneration 7
12. Conflict of duties 7
13. Committees 8
Division 3 — Staff
Subdivision 1 — Chief executive officer
14. Appointment 8
15. Role of chief executive officer 9
16. Resignation 9
17. Acting appointments 9
Subdivision 2 — Other staff
18. Powers in relation to staff 9
19. Certain industrial matters excluded from employment agreements 10
20. Designation of executive officers 11
Subdivision 3 — Minimum standards for staff management
21. Standards to be set out in instrument 11
22. Reports to Commissioner for Public Sector Standards 12
Subdivision 4 — Joint policy on staff transfers
23. Corporations to have joint policy approved by Minister 12
24. Amendment of policy statement 13
25. Consultation with staff 13
Subdivision 5 — General
26. Superannuation 14
Division 4 — Duties of, and relating to, directors and staff
27. Duties of, and relating to, directors 15
28. Chief executive officer, duties imposed 15
29. Executive officers, duties imposed 15
30. Members of staff, duties imposed 15
31. Codes of conduct 16
32. Reports to Commissioner for Public Sector Standards 16
33. Reports to Minister 17
Part 3 — Functions and powers of corporations
Division 1 — Functions, powers and related provisions
Subdivision 1 — Preliminary
34. Terms used in this Division 18
Subdivision 2 — Electricity Generation Corporation
35. Principal functions 19
36. Other functions 20
37. Restriction on area in which corporation may operate 20
38. Restriction on sale of electricity to consumers 21
39. Review of restriction 21
40. Extension of designated period 22
Subdivision 3 — Electricity Networks Corporation
41. Principal functions 22
42. Other functions 23
43. Restriction on area in which corporation may operate 24
Subdivision 4 — Electricity Retail Corporation
44. Principal functions 24
45. Other functions 25
46. Restriction on area in which corporation may operate 25
47. Prohibition on generation of electricity for a designated period 25
48. Review of prohibition 26
49. Extension of designated period 26
Subdivision 5 — Regional Power Corporation
50. Principal functions 27
51. Other functions 28
52. Restriction on area in which corporation may operate 28
Subdivision 6 — Special function in respect of certain assets and liabilities
53. Administration under delegated power 29
Subdivision 7 — Use of distribution systems for the retail supply of electricity
54. Electricity Networks Corporation and Regional Power Corporation not to supply services for certain purposes30
55. Review as to introduction of further retail competition 31
Subdivision 8 — Provisions applying to functions of all corporations
56. Corporations may act at their discretion 32
57. Where corporation may operate 32
58. Corporation to act in accordance with policy instruments 32
59. Powers 32
60. Certain works exempt from planning laws 34
61. Corporation to act on commercial principles 36
62. Segregation of functions of corporations 36
63. Interruption or restriction of supply 37
64. Acquisition of subsidiary 38
65. Control of subsidiary 38
66. Corporations Act, effect of section 65 39
67. Disposals that require a Ministerial order 39
68. Other transactions that require Ministerial approval 40
69. Exemptions from section 68 41
70. Minister to be consulted on major initiatives 42
71. Delegation 42
Division 2 — Role of Economic Regulation Authority
72. Advisory function 43
73. Public consultation 43
74. Advice to be published 44
Division 3 — Arrangements authorised or approved by Governor
75. Governor may make certain regulations 44
Division 4 — Protection of persons dealing with a corporation
76. Person dealing with corporation may make assumptions 45
77. Third party may make assumptions 45
78. Assumptions that may be made 45
79. Exception to sections 76 and 77 46
Part 4 — Operation of corporations, imposition of requirements
80. Meaning of terms used in this Part 48
81. Object of this Part 48
82. Minister may prescribe contracts 48
83. Matters that may be provided for 48
84. Amendment and cancellation 49
85. Enforcement 50
86. Advice of Economic Regulation Authority to be obtained 50
87. Trade practices exemption 50
Part 5 — Provisions about accountability
Division 1 — Strategic development plans
88. Draft strategic development plan to be submitted to Minister51
89. Transitional provision 51
90. Matters to be included in strategic development plan 51
91. Strategic development plan to be agreed if possible 52
92. Minister’s powers in relation to draft strategic development plan 53
93. Strategic development plan pending agreement 53
94. Minister’s agreement to draft strategic development plan 54
95. Modifications of strategic development plan 54
96. Concurrence of Treasurer 54
Division 2 — Statement of corporate intent
97. Draft statement of corporate intent to be submitted to Minister 55
98. Transitional provision 55
99. Matters to be included in statement of corporate intent 55
100. Statement of corporate intent to be agreed if possible 57
101. Minister’s powers in relation to draft statement of corporate intent 57
102. Statement of corporate intent pending agreement 58
103. Minister’s agreement to draft statement of corporate intent58
104. Modifications of statement of corporate intent 59
105. Concurrence of Treasurer 60
Division 3 — Quarterly and annual reports
106. Quarterly reports 60
107. Annual reports 61
108. Contents of annual reports 62
109. Deletion of commercially sensitive matters from reports 63
Division 4 — Ministerial directions
110. Directions to corporation 63
111. Directions generally 63
112. Directions contrary to commercial interest 64
113. When directions take effect 65
114. Directions relating to the supply of gas 65
Division 5 — Consultation and provision of information
115. Consultation 66
116. Minister to have access to information 66
117. Provision of information in compiled form 67
118. Minister to be kept informed 68
119. Notice of financial difficulty 69
Division 6 — Protection from liability
120. No liability for certain acts or omissions 70
Part 6 — Financial provisions
Division 1 — General
121. Bank account 71
122. Investment 71
123. Exemption from rates 71
Division 2 — Payments to State
124. Payment of amount in lieu of rates 71
125. Determination of amounts under section 124 72
126. Dividend 72
Division 3 — Borrowing
127. Borrowing 73
128. Borrowing limits 74
129. Hedging transactions 75
Division 4 — Guarantees
130. Guarantees 76
131. Charges for guarantee 76
Division 5 — Financial administration and audit
132. Limited application of Financial Administration and Audit Act 1985 77
133. Financial administration and audit 77
Part 7 — Miscellaneous
134. Supplementary provision for laying document before Parliament 79
135. Execution of documents 79
136. Contract formalities 80
137. Delegation by Treasurer 81
138. Regulations 81
Part 8 — Amendments to other written laws
139. Amendments to other Acts 82
140. Power to amend subsidiary legislation 82
Part 9 — Transitional provisions for succession from Western Power Corporation to new corporations
Division 1 — Preliminary
141. Purpose of this Part 83
142. Terms used in this Part 83
143. Saving 85
Division 2 — Powers conferred on Minister
144. Power for certain agreements to be made before commencement day 85
145. Minister may give directions 86
146. Directions to be laid before Parliament 87
Division 3 — Passing of Western Power Corporation’s assets and liabilities to new corporations or the State
Subdivision 1 — Making of transfer orders
147. Minister to make order for allocation of assets and liabilities87
148. Order may provide for transfer to subsidiary 88
149. Transfer order schedules 89
150. Treatment of certain internal arrangements of Western Power Corporation 89
151. Power to make subsequent order 90
152. References in Government agreements 90
153. Amendment of transfer orders 91
Subdivision 2 — Operation of transfer orders
154. Allocation to one new corporation 92
155. Order for transfer to subsidiary 93
156. Allocation to more than one new corporation 94
157. Replacement of Western Power Corporation in proceedings96
158. Handing over of records 97
159. Changes to Government agreements 97
Subdivision 3 — Re‑allocation of assets, rights and liabilities
160. Order for re‑allocation 97
161. Re‑allocation to have effect from commencement day 99
162. Handing over of records 100
Subdivision 4 — Order that allocated assets or liabilities pass instead to the State
163. Minister may order that section 169 is to apply 100
164. Effect of order 101
165. Handing over of records 102
Subdivision 5 — Replacement of party in proceedings
166. Order for replacement 103
167. Effect of order 103
168. Handing over of records 104
Subdivision 6 — Assets, liabilities and proceedings not otherwise provided for
169. Unallocated assets and liabilities to be dealt with by Minister104
170. Provisions incidental to section 169 105
171. State to be party to proceedings if no provision made 106
172. Handing over of records 107
Subdivision 7 — Other matters relating to passing of assets and liabilities
173. Continuation of guarantees in respect of Western Power Corporation 107
174. Guarantees to which section 173 does not apply 108
175. Certain joint tenancies preserved 109
176. Western Power Corporation to complete necessary transactions 109
177. Exemption from State taxation 110
178. Registration of documents 111
Division 4 — Staff
179. Transition of employment 112
180. Employees’ rights preserved 112
Division 5 — Contracts with tariff customers
181. Minister to prescribe contracts 113
Division 6 — Other transitional provisions
182. Annual report 114
183. Continuation of certain directions given to Western Power Corporation 114
184. Completion of things commenced 115
185. Continuing effect of things done 115
186. Immunity to continue 115
187. Agreements and instruments generally 116
188. Western Power Corporation to perform necessary transitional functions 116
Division 7 — Making of further provision by regulation
189. Powers of rectification and similar matters 117
190. Further provision may be made by regulation 118
191. Regulations may operate from the commencement day 118
Division 8 — Indemnities and guarantees
192. Treasurer may give indemnity and guarantee 119
Schedule 1 — Provisions about the constitution and proceedings of boards
1. Meaning of “director” 121
2. Term of office 121
3. Resignation and removal 121
4. Chairperson and deputy chairperson 121
5. Alternate directors 122
6. Meetings 123
7. Telephone and video meetings 123
8. Resolution may be passed without meeting 123
9. Minutes and records 124
10. Leave of absence 125
11. Board to determine own procedures 125
Schedule 2 — Provisions about the duties of directors and related provisions
Division 1 — Preliminary
1. Attempts to commit offences 126
Division 2 — Certain duties stated
2. Duty to act honestly 126
3. Duty to exercise reasonable care and diligence 126
4. Duty not to make improper use of information 127
5. Duty not to make improper use of position 127
6. Fiduciary duty 128
Division 3 — Recovery from director
7. Payment of compensation may be ordered 128
8. Civil proceedings for recovery from director 128
Division 4 — Relief from liability
9. Court may grant relief 129
10. Application for relief 129
11. Case may be withdrawn from jury 129
Division 5 — Personal interests of directors, disclosure and voting
12. Disclosure 130
13. Voting by interested directors 130
Division 6 — Other prohibited conduct
14. Prohibition on loans to directors and related persons 131
15. Directors and auditors not to be indemnified for certain matters 132
16. False or misleading information 133
Schedule 3 — Provisions to be included in constitution of subsidiary
1. Disposal of shares 136
2. Directors 136
3. Further shares 136
4. Subsidiaries of subsidiary 136
Schedule 4 — Financial administration and audit
Division 1 — Preliminary
1. Meaning of terms used in this Schedule 138
Division 2 — Financial records
2. Obligation to keep financial records (cf. Corporations Act s. 286) 138
3. Physical format (cf. Corporations Act s. 288) 138
4. Place where records are kept (cf. Corporations Act s. 289) 139
5. Director access (cf. Corporations Act s. 290) 139
Division 3 — Financial reporting
Subdivision 1 — Annual financial reports and directors’ reports
6. Preparation of annual financial reports and directors’ reports (cf. Corporations Act s. 292)140
7. Contents of annual financial report (cf. Corporations Act s. 295) 140
8. Compliance with accounting standards and regulations (cf. Corporations Act s. 296) 141
9. True and fair view (cf. Corporations Act s. 297) 141
10. Annual directors’ report (cf. Corporations Act s. 298) 141
11. Annual directors’ report — general information (cf. Corporations Act s. 299) 142
12. Annual directors’ report — specific information (cf. Corporations Act s. 300) 143
13. Annual directors’ report — other specific information (cf. Corporations Act s. 300A) 145
14. Audit of annual financial report (cf. Corporations Act s. 301) 145
Subdivision 2 — Audit and auditor’s report
15. Audit opinion (cf. Corporations Act s. 307) 145
16. Auditor General’s report on annual financial report (cf. Corporations Act s. 308) 146
17. Auditor General’s power to obtain information (cf. Corporations Act s. 310) 147
18. Assisting Auditor General (cf. Corporations Act s. 312) 147
Subdivision 3 — Special provisions about consolidated financial statements
19. Directors and officers of controlled entity to give information (cf. Corporations Act s. 323)147
20. Auditor General’s power to obtain information from controlled entity (cf. Corporations Act s. 323A)147
21. Controlled entity to assist the Auditor General (cf. Corporations Act s. 323B) 148
22. Application of subdivision to entity that has ceased to be controlled (cf. Corporations Act s. 323C)148
Subdivision 4 — Financial years of the corporation and the entities it controls
23. Financial years (cf. Corporations Act s. 323D) 148
Division 4 — Accounting standards
24. Accounting standards (cf. Corporations Act s. 334) 149
25. Equity accounting (cf. Corporations Act s. 335) 149
26. Interpretation of accounting standards (cf. Corporations Act s. 337) 149
27. Evidence of text of accounting standard (cf. Corporations Act s. 339) 149
Division 5 — Exemptions and modifications
28. Treasurer’s power to make specific exemption orders (cf. Corporations Act s. 340) 150
29. Criteria for specific exemption orders and class orders (cf. Corporations Act s. 342) 151
30. Extension of time 151
Division 6 — Sanctions for contraventions of this Schedule
31. Contravention of Divisions 2 and 3 (cf. Corporations Act s. 344) 152
Division 7 — Miscellaneous
32. Deadline for reporting to the Minister (cf. Corporations Act s. 315) 152
33. Annual financial reporting to the Minister (cf. Corporations Act s. 314) 152
34. Audit 153
35. Powers and duties of the Auditor General 153
Schedule 5 — Amendments to other Acts
Division 1 — Constitution Acts Amendment Act 1899
1. The Act amended 154
2. Schedule V amended 154
Division 2 — Economic Regulation Authority Act 2003
3. The Act amended 155
4. Section 20 amended 155
Division 3 — Electricity Act 1945
5. The Act amended 155
6. Section 5 amended 155
Division 4 — Electricity Corporation Act 1994
7. The Act amended 156
8. Long title amended 156
9. Section 1 amended 156
10. Sections 2 and 3 replaced by section 2 156
2. Terms used in this Act 156
11. Parts 2, 3, 4 and 5 repealed 157
12. Part 6 heading replaced 157
Part 6 — Access to electricity transmission and distribution systems
13. Section 89 amended 158
14. Sections 92 and 93 repealed 159
15. Section 94 amended 159
16. Section 95 amended 160
17. Section 95A amended 160
18. Section 96 inserted 161
96. Regulations 161
19. Part 7 and Schedules 1, 2, 3 and 4 repealed 161
20. Schedule 5 amended 161
4. Obligation to provide information 164
21. Schedule 6 amended 166
4. Obligation to provide information 168
22. Schedule 7 repealed and saving provisions 170
Division 5 — Electricity Industry Act 2004
23. The Act amended 170
24. Section 3 amended 170
25. Section 12 amended 171
26. Section 31 amended 171
27. Section 39 amended 172
28. Section 39A inserted 172
39A. Reviewof code standards applying to Regional Power Corporation 172
29. Section 45 amended 175
30. Section 46 amended 175
31. Sections 54A and 54B inserted 176
54A. Electricity corporations required to offer to supply electricity under prescribed form of contract176
54B. Enforcement of obligation in section 54A(2) 178
32. Sections 55 and 56 repealed 178
33. Section 60 amended 178
34. Section 71 amended 179
35. Section 106 amended 179
36. Section 119 amended 180
37. Part 9A inserted 180
Part 9A — Tariff equalisation
129A. Purpose of this Part 180
129B. Terms used in this Part 180
129C. Tariff Equalisation Fund 181
129D. Determination of tariff equalisation contributions182
129E. Treasurer may seek advice from the Authority183
129F. Payment and passing on of tariff equalisation contributions 183
129G. Payments from the Fund 185
129H. Information 185
129I. Treasurer to recommend regulations 185
129J. Delegation by Treasurer 185
Division 6 — Energy Corporations (Transitional and Consequential Provisions) Act 1994
38. The Act amended 186
39. Section 50 amended 186
Division 7 — Energy Operators (Powers) Act 1979
40. The Act amended 187
41. Section 4 amended 187
42. Section 124 amended 188
Division 8 — Equal Opportunity Act 1984
43. The Act amended 189
44. Section 139 amended 189
Division 9 — Gas Pipelines Access (Western Australia) Act 1998
45. The Act amended 190
46. Section 80 amended 190
Division 10 — Land Administration Act 1997
47. The Act amended 191
48. Section 160 amended 191
Division 11 — Metropolitan Region Town Planning Scheme Act 1959
49. The Act amended 192
50. Second Schedule amended 192
Division 12 — Public Sector Management Act 1994
51. The Act amended 192
52. Schedule 1 amended 192
Division 13 — Public Works Act 1902
53. The Act amended 193
54. Section 5A amended 193
55. Section 5B amended 193
Division 14 — State Records Act 2000
56. The Act amended 194
57. Schedule 3 amended 194
Division 15 — Town Planning and Development Act 1928
58. The Act amended 194
59. Section 27A amended 194
Defined Terms
Western Australia
Electricity Corporations Act 2005
No. 18 of 2005
An Act —
·to establish 3 corporations in place of Western Power Corporation each with particular responsibilities relating to the provision of electricity in the South West of the State, and a corporation in place of Western Power Corporation with responsibility for the provision of electricity outside the South West of the State;
·to provide for the passing of the assets and liabilities of Western Power Corporation to the new corporations or to the State and for other transitional matters;
·to amend and rename the Electricity Corporation Act 1994, and to amend other Acts, as a consequence of Western Power Corporation being replaced by the new corporations,
and to make related provisions.
[Assented to 13 October 2005]
The Parliament of Western Australia enacts as follows:
Part 1 — Preliminary
1. Short title
This is the Electricity Corporations Act 2005.
2.
(1) Except as stated in subsection (2), this Act comes into operation on the day on which it receives the Royal Assent.
(2) The provisions of —
(a) Parts 2, 3, 4, 5, 6, 7 and 8;
(b) Part 9, other than sections 141, 142, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153(1) and 179; and
(c) Schedules 1, 2, 3, 4 and 5,
come into operation on a day fixed by proclamation.
(3) Different days may be fixed under subsection (2) for different provisions.
(4) A day is not to be fixed for the purposes of subsection (2) until the Minister is of the opinion that the transfer order or transfer orders required by section 147(1) has or have been made.
3.
(1) In this Act, unless the contrary intention appears —
“board” means a board of directors provided for by section 8;
“chief executive officer” means an officer appointed under section 14 and, except in sections 14 and 16, includes an acting chief executive officer appointed under section 17;
“Commissioner for Public Sector Standards” means the person for the time being holding the office created by the Public Sector Management Act 1994 section 16(1);
“corporation” means a body established by section 4(1);
“Corporations Act” means the Corporations Act 2001 of the Commonwealth;
“director” means a member of a board;
“Economic Regulation Authority” means the Economic Regulation Authority established by the Economic Regulation Authority Act 2003;
“electricity” includes electrical energy of any kind however produced, stored, transported or consumed;
“Electricity Generation Corporation” means the body established by section 4(1)(a);
“Electricity Networks Corporation” means the body established by section 4(1)(b);
“Electricity Retail Corporation” means the body established by section 4(1)(c);
“executive officer” means a member of the staff of a corporation designated under section 20 as an executive officer;
“function” includes powers, duties and authorities, except in —
(a) Part 3 Division 1 Subdivisions 1 to 6; and
(b) sections 56 and 59;
“gas” means any gas or mixture of gases, whether naturally occurring or manufactured, intended for use —
(a) as a fuel; or
(b) in any chemical process;
“member of staff” means a person engaged under section 18;
“non‑executive director”, in relation to a corporation, means a director other than the chief executive officer if he or she is a director of the corporation;
“Regional Power Corporation” means the body established by section 4(1)(d);
“South West interconnected system” means the interconnected transmission and distribution systems, generating works and associated works —
(a) located in the South West of the State and extending generally between Kalbarri, Albany and Kalgoorlie; and
(b) into which electricity is supplied by one or more of the electricity generation plants at Kwinana, Muja, Collie and Pinjar,
as expanded or altered from time to time;
“subsidiary”, in relation to a corporation, means —
(a) a body determined to be a subsidiary of the corporation under subsection (2); and
(b) an interest or other rights of the corporation in a unit trust, joint venture or partnership where the interest or other rights of the corporation in connection with the unit trust, joint venture or partnership entitle the corporation to —
(i) control the composition of the governing body of the unit trust, joint venture or partnership;
(ii) cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the unit trust, joint venture or partnership; or
(iii) control the business affairs of the unit trust, joint venture or partnership;
“Treasurer” means the Treasurer of the State.
Part 2 — Electricity Corporations
Division 1 — Establishment of corporations
4. Corporations
(a) the Electricity Generation Corporation;
(b) the Electricity Networks Corporation;
(c) the Electricity Retail Corporation; and
(2) Proceedings may be taken by or against a corporation in its corporate name.
(3) A corporation may use, and operate under, one or more trading names approved by the Minister being —
(a) an abbreviation or adaptation of its corporate name; or
(b) a name other than its corporate name.
5. Corporations not agents of the State
A corporation is not an agent of the State and does not have the status, immunities and privileges of the State.
6. Corporations and officers not part of Public Service
(1) A corporation is not, and is not to become, a public sector body under the Public Sector Management Act 1994.
(2) Neither —
(a) the chief executive officer; nor
(b) any member of staff,
of a corporation is to be included in the Senior Executive Service provided for by the Public Sector Management Act 1994.
7. Head office of Regional Power Corporation
The head office of the Regional Power Corporation is to be located in a part of the State that is not served by the South West interconnected system.
Division 2 — Boards of directors
8. Boards of directors
(1) A corporation is to have a board of directors comprising not less than 4, nor more than 6, persons appointed by the Governor on the nomination of the Minister.
(2) The chief executive officer of a corporation may be a director of the corporation.
(3) A member of staff of a corporation is not to be a director of the corporation.
(4) In making nominations for appointment to the board of a corporation the Minister is to ensure that —
(a) each nomination is made only after consultation with the board; and
(b) in the case of an appointment to the board of the Regional Power Corporation, a nominee is a person ordinarily resident in a part of the State that is not served by the South West interconnected system so far as is necessary for the majority of the directors of the corporation, at the time of the appointment, to be persons so resident.
(5) Where a vacancy occurs in the membership of a board, the board may recommend a candidate to the Minister.
(6) Subsection (4)(a) does not apply —
(a) to the initial appointments to a board; or
(b) where the nominee was recommended by a board under subsection (5).
9. Role of board
The board of a corporation —
(a) is its governing body; and
(b) in the name of the corporation and subject to this Act, is to perform the functions, determine the policies and control the affairs of the corporation.
10. Provisions about the constitution and proceedings
Schedule 1 has effect with respect to the directors and the board of a corporation.
11. Remuneration
(1) A non‑executive director of a corporation is to be paid out of the funds of the corporation such remuneration and allowances as are determined by the Minister in the case of that corporation and that director.
(2) Remuneration is not to be paid to a non‑executive director who holds a full‑time office or position that is remunerated out of moneys appropriated by Parliament.
12. Conflict of duties
(1) In subsection (2) —
“public service officer” means a person who is employed in the Public Service under the Public Sector Management Act 1994 Part 3.
(2) If a public service officer is a director —
(a) his or her duties as a director are to prevail if a conflict arises between those duties and his or her other duties as a public service officer; and
(b) he or she does not have any immunity of the State in respect of the duties and liabilities imposed on directors by this Act.
13. Committees
(1) The board of a corporation may —
(a) appoint committees of such directors of the corporation as it thinks fit; and
(b) discharge, alter or reconstitute any committee.
(2) A committee is to comply with any direction or requirement of the board by which it was appointed.
(3) A committee may invite any person, including a member of staff of the corporation concerned, to participate in a meeting of the committee but such a person cannot vote on any resolution.
(4) Subject to subsection (2), a committee may determine its own procedures.
Division 3 — Staff
Subdivision 1 — Chief executive officer
14.
(1) A corporation is to have a chief executive officer.
(a) to appoint and remove the chief executive officer of a corporation; and
(b) to fix and alter his or her terms and conditions of service,
are vested in the board of the corporation.
(3) Despite subsection (2), the Minister is to appoint the initial chief executive officer of a corporation.
(4) It is a condition of service of the chief executive officer of the Regional Power Corporation that, while he or she holds office, his or her ordinary place of residence is to be in or near the town where the head office of that corporation is located.
15. Role of chief executive officer
Subject to the control of the board, the chief executive officer of a corporation is responsible for, and has the powers needed to administer, the day to day operations of the corporation.
16. Resignation
(1) The chief executive officer of a corporation may resign from office by giving notice in writing to the board of the corporation.
(2) If the chief executive officer’s terms and conditions of service deal with the matter of resignation, the right to resign under subsection (1) can only be exercised in accordance with those terms and conditions.
17. Acting appointments
(a) during a vacancy in that office; or
(b) during any period when the chief executive officer is on leave or otherwise unable to carry out his or her duties or is absent from the State.
Subdivision 2 — Other staff
18. Powers in relation to staff
(1) The power to engage and manage the staff of a corporation is vested in its board.
(2) The power conferred by subsection (1) —
(a) includes powers to determine remuneration and other terms and conditions of service and to remove, suspend and discipline staff; and
(b) does not preclude the delegation of any matter under section 71.
(3) The remuneration of a member of staff and other terms and conditions of employment are to be such that the overall entitlements do not, on balance, disadvantage the person in comparison to the entitlements he or she would have under —
(a) an applicable award, order or agreement under the Industrial Relations Act 1979; or
(b) the Minimum Conditions of Employment Act 1993.
(4) Nothing in this Act, other than section 19(2), affects the operation of the Industrial Relations Act 1979 Part VID.
19. Certain industrial matters excluded from employment agreements
(1) There are excluded from the operation of the Industrial Relations Act 1979 Part II Division 2B —
(a) any matters dealt with by an instrument issued under section 21 except —
(i) rates of remuneration;
(ii) leave;
(iii) hours of duty; and
(iv) matters that are similar to matters prescribed for the purposes of the Public Sector Management Act 1994 section 99(1)(a)(iv);
and
(b) matters concerning the management of the staff that are similar to matters prescribed for the purposes of the Public Sector Management Act 1994 section 99(1)(c).
(2) A matter referred to in subsection (1) cannot be varied or affected by an employer‑employee agreement made under the Industrial Relations Act 1979 Part VID.
20. Designation of executive officers
For the purposes of section 29, the board of a corporation may designate a member of the staff of the corporation as an executive officer by resolution —
(a) passed by the board; and
(b) notified in writing to the employee,
and may in the same manner revoke such a designation.
Subdivision 3 — Minimum standards for staff management
21.
(1) The board of a corporation must, after consultation with the Commissioner for Public Sector Standards, prepare and issue an instrument setting out minimum standards of merit, equity and probity applicable to the management of the staff of the corporation.
(2) In subsection (1) —
“management” includes recruitment, selection, appointment, transfer, secondment, performance management, redeployment, discipline and termination of employment.
(3) In complying with subsection (1) a board is to have regard to the principles set out in the Public Sector Management Act 1994 section 8.
(4) Section 14(5) is not affected by the requirements of subsection (3).
(5) The Commissioner for Public Sector Standards may at any time recommend to a board any amendment that he or she thinks should be made to an instrument issued under this section.
(6) A board may —
(a) amend an instrument issued under this section; or
(b) revoke it and substitute a new instrument,
but, except where subsection (5) applies, is to do so only after consultation with the Commissioner for Public Sector Standards.
22. Reports to Commissioner for Public Sector Standards
(1) The Commissioner for Public Sector Standards may in writing require a board —
(a) to report to him or her on the observance of the minimum standards in force under section 21; and
(b) to make the reports at such times, but not more often than half‑yearly, as the Commissioner may specify.
(2) A board must comply with a requirement made under subsection (1).
(3) The Commissioner for Public Sector Standards may at any time report to the Minister on the content or observance of the minimum standards in force under section 21.
Subdivision 4 — Joint policy on staff transfers
23. Corporations to have joint policy approved by Minister
(1) The corporations must have, and comply with, a joint policy on staff transfers that has been approved or determined by the Minister under this section.
(2) The purpose of the joint policy referred to in subsection (1) is to ensure that members of staff of the corporations and of their subsidiaries have the opportunity to transfer between the corporations and their subsidiaries —
(a) for temporary or permanent employment;
(b) on secondment or temporary deployment; or
(c) for training,
without loss of entitlements.
(3) Within 2 months after the commencement of this section, the corporations must jointly prepare a draft policy statement for the purposes of subsection (1) and submit it to the Minister.
(4) The Minister may —
(a) approve a draft policy statement submitted under subsection (3); or
(b) request that it be amended and approve it in an amended form.
(5) If a policy statement has not been approved by the Minister within a period that he or she considers reasonable and notifies to the corporations, the Minister may determine the contents of the policy statement.
24. Amendment of policy statement
(1) With the approval of the Minister, the corporations may jointly —
(a) amend a policy statement for the time being in force under section 23; or
(b) revoke it and replace it with another policy statement.
(2) The Minister may, in writing, direct the corporations —
(a) to amend a policy statement for the time being in force under section 23 in a specified way; or
(b) to revoke it and replace it with another policy statement containing specified provisions,
and the corporations are to comply with any such direction.
25. Consultation with staff
A corporation must —
(a) in preparing the draft policy statement under section 23(3); and
(b) before agreeing to make any amendment or replacement under section 24(1),
consult the members of its staff and the staff of its subsidiaries by making the draft statement, amendment or replacement, as the case may be, available for their comment.
Subdivision 5 — General
26. Superannuation
(1) In this section —
“members of staff” includes —
(a) a chief executive officer;
(b) dependants of members of staff; and
(c) former members of staff and their dependants.
(2) A corporation may grant, or make provision for the grant of, retirement benefits to members of staff of the corporation and, for that purpose may —
(a) establish, manage and control; or
(b) enter into an arrangement with any body for the establishment, management and control by such body either alone or jointly with the corporation of,
any fund or scheme for the purpose of providing for such retirement benefits.
(3) The corporation concerned may make contributions to any fund or scheme referred to in subsection (2).
(4) Subsections (2) and (3) have effect subject to the State Superannuation Act 2000 section 30.
(5) Nothing in this section affects the operation of the State Superannuation Act 2000 in relation to a corporation or any member of staff.
Division 4 — Duties of, and relating to, directors and staff
27. Duties of, and relating to, directors
Schedule 2 has effect in relation to —
(a) the duties of directors;
(b) the duties of a corporation in respect of directors and related persons; and
(c) the other matters provided for in that Schedule.
28. Chief executive officer, duties imposed
(1) Schedule 2 clauses 2 to 11, 15 and 16 apply to the chief executive officer of a corporation in his or her capacity as such in addition, if he or she is a director of the corporation, to their application to him or her in that capacity.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a former chief executive officer in his or her capacity as such in addition, if he or she was a director of the corporation, to their application to him or her in the capacity of former director.
(3) This section and section 27 do not operate so as to make a chief executive officer or a former chief executive officer liable to be punished twice for the same act or omission.
29. Executive officers, duties imposed
(1) Schedule 2 clauses 2 to 5, 7 to 11, 15 and 16 apply to an executive officer as if references to a director were replaced by references to an executive officer.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a former executive officer as if references to a former director were replaced by references to a former executive officer.
30. Members of staff, duties imposed
(1) Schedule 2 clauses 4, 5 and 7 to 11 apply to any person engaged under section 18, other than an executive officer, as if references to a director were replaced by references to a person so engaged.
(2) Schedule 2 clauses 4 and 7 to 11 apply to a person formerly engaged under section 18, other than an executive officer, as if references to a former director were replaced by references to a person formerly so engaged.
31. Codes of conduct
(1) In this section and in sections 32 and 33 —
“members of staff” includes a chief executive officer.
(2) The board of a corporation must, after consultation with the Commissioner for Public Sector Standards, prepare and issue a code or codes of conduct setting out minimum standards of conduct and integrity to be observed by members of staff of the corporation.
(3) In complying with subsection (2) a board is to have regard to the principles set out in the Public Sector Management Act 1994 section 9.
(4) A board may, after consultation with the Commissioner for Public Sector Standards, amend any code of conduct in force under subsection (2) or revoke it and substitute a new code of conduct.
32. Reports to Commissioner for Public Sector Standards
(a) to report to him or her on the observance of any code of conduct in force under section 31 by members of staff of the corporation; and
(b) to make the reports at such times, but not more often than half‑yearly, as the Commissioner may specify.
(2) A board must comply with a requirement made under subsection (1).
(3) The Commissioner for Public Sector Standards may at any time report to the Minister on any matter that the Commissioner thinks should be brought to the Minister’s attention relating to the observance by members of staff of a corporation of a code of conduct in force under section 31.
33. Reports to Minister
(1) The board of a corporation, when it delivers to the Minister its annual report under section 107, must also deliver to the Minister a separate report on the observance of any code of conduct in force under section 31 by members of staff of the corporation.
(2) A board must give to the Commissioner for Public Sector Standards a copy of each report under subsection (1).
Part 3 — Functions and powers of corporations
Division
34. Terms used in this Division
(1) In this Division —
“acquire”, in relation to electricity or gas, includes acquire by way of exchange;
“ancillary services” means services that are necessary or expedient for the security or reliability of an electricity system;
“energy efficient technologies” means technologies, including but not limited to operating software, designed to improve the efficiency of electricity generation plant and equipment;
“renewable sources” means sources of energy that are replaced rapidly by natural processes, including sunlight, wind, biomass, water in motion and geothermal activity;
“telecommunication services” means services for carrying communications by one or more of the following means —
(a) guided electromagnetic energy;
(b) unguided electromagnetic energy;
(c) optical signals;
(d) other similar means.
(2) References in this Division to the performance of a corporation’s functions being limited to the South West interconnected system are —
(a) in the case of a function relating to electricity, references to performing the function for the purposes of that system or customers served by that system;
(b) in the case of the functions of —
(i) supplying gas or steam; or
(ii) providing telecommunication services,
references to performing those functions within the area served by that system.
Subdivision 2 — Electricity Generation Corporation
35. Principal functions
The functions of the Electricity Generation Corporation (in this Subdivision called the “corporation”) are, subject to this Subdivision —
(a) to generate, purchase or otherwise acquire, and supply electricity from sources of energy including renewable sources;
(b) to acquire, transport and supply —
(i) gas; and
(ii) steam;
(c) to acquire, develop, operate and supply energy efficient technologies;
(d) to provide ancillary services;
(e) by agreement with the Regional Power Corporation —
(i) to provide consultative and advisory services to that corporation in relation to electricity generation; and
(ii) to operate and maintain any electricity generation plant or equipment on behalf of that corporation;
and
(f) to undertake, maintain and operate any works, system, facilities, apparatus or equipment required for any purpose mentioned in this section.
36. Other functions
It is also a function of the corporation —
(a) in addition to its function under section 35(e)(i), to use its expertise and resources to provide consultative, advisory or other services for profit;
(b) to develop and turn to account any technology, software or other intellectual property that relates to a function under section 35;
(c) to manufacture and market any product that relates to a function under section 35 or paragraph (b);
(d) to use or exploit for profit the fixed assets it has for the purpose of performing a function under section 35 so long as the proper performance of the function is not affected;
(e) to do anything that the corporation determines to be conducive or incidental to the performance of a function under section 35 or this section; or
(f) to do anything that it is authorised to do by any other written law.
37. Restriction on area in which corporation may operate
(1) Within the State the performance of the corporation’s functions under section 35 is limited to the South West interconnected system.
(2) Subsection (1) does not apply to the performance of the corporation’s functions under section 35(a) so far as the performance involves only —
(a) the generation and supply of electricity from renewable sources; or
(b) the purchase or other acquisition and supply of electricity so generated.
(3) Subsection (1) does not apply to the performance of the corporation’s functions under subparagraph (ii) of section 35(e), but the functions under that subparagraph do not authorise the corporation to own or control any electricity generation plant or equipment.
38. Restriction on sale of electricity to consumers
(1) Except as may be authorised under subsection (3), the corporation, or a subsidiary, must not, until after the expiry of the designated period, supply electricity to a person under section 35(a) for the person’s own consumption.
(2) For the purposes of subsection (1) —
“the designated period” is —
(a) the period of 7 years; or
(b) if an order is made under section 40, the period of 10 years,
after the commencement of this section.
(3) The Minister may, by order published in the Gazette —
(a) authorise the corporation in the performance of its functions under section 35(a) to supply electricity to specified customers or any specified class of customers during the designated period; and
(b) amend or revoke an order made under paragraph (a).
39. Review of restriction
(1) The Minister is to review the operation of section 38(1) before the expiry of 5 years from the commencement of this section.
(2) The purpose of the review is to determine the effect that the operation of section 38(1) has had, and is likely to have, on the encouragement of competition in the generation, retail and wholesale electricity markets.
(3) Before the Minister carries out the review he or she must obtain, and take into account, the views of the Economic Regulation Authority on the matters mentioned in subsection (2).
40. Extension of designated period
(1) The Minister may by order made —
(a) after completion of the review required by section 39; and
(b) before the expiry of the period of 7 years after the commencement of this section,
declare that the designated period is extended to 10 years after that commencement.
(2) The Interpretation Act 1984 sections 41 and 42 apply to an order under subsection (1) as if it were a regulation.
Subdivision 3 — Electricity Networks Corporation
The functions of the Electricity Networks Corporation (in this Subdivision called the “corporation”) are —
(a) to manage, plan, develop, expand, enhance, improve and reinforce electricity transmission and distribution systems and provide and improve electricity transmission and distribution services;
(b) to do anything that it is authorised or required to do by the Electricity Industry Act 2004 Part 8 (which relates to network access) and regulations and Code made under that Part;
(c) to do anything that it is authorised or required to do by the Electricity Industry Act 2004 Part 9 (which relates to the wholesale electricity market) and regulations and market rules made under that Part;
(d) to provide services that improve the efficiency of electricity supply and the management of demand on electricity transmission and distribution systems;
(e) to provide ancillary services;
(f) by agreement with the Regional Power Corporation, to operate and maintain electricity transmission and distribution systems on behalf of that corporation;
(g) by agreement with the Electricity Generation Corporation, the Electricity Retail Corporation and the Regional Power Corporation, to provide procurement, financial and commercial services to those corporations;
(h) to provide telecommunication services; and
(i) to undertake, maintain and operate any works, system, facilities, apparatus or equipment required for any purpose mentioned in this section.
42. Other functions
It is also a function of the corporation —
(a) in addition to its functions under section 41(f) and (g), to use its expertise and resources, other than those relating to the functions referred to in section 41(c), to provide consultative, advisory or other services for profit;
(b) to develop and turn to account any technology, software or other intellectual property that relates to a function under section 41(a) or (d) to (i);
(c) to manufacture and market any product that relates to a function —
(i) under section 41(a) or (d) to (i); or
(ii) under paragraph (b) of this section;
(d) to use or exploit for profit the fixed assets it has for the purpose of performing a function under section 41(a) or (d) to (i) so long as the proper performance of the function is not affected;
(e) to do anything that the corporation determines to be conducive or incidental to the performance of a function under section 41 or this section; or
(f) to do anything that it is authorised to do by any other written law.
43. Restriction on area in which corporation may operate