VersionNo. 040
State Owned Enterprises Act 1992
No. 90 of 1992
Versionincorporating amendments as at
31 October 2012
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Subsidiary
5Act to prevail
6Act to bind Crown
Part 2—Statutory Corporations: Reorganisation and Establishment of State Bodies
Division 1—Reorganising bodies
7Declaration of statutory corporation as reorganising body
8Boards of reorganising body
8AFunctions may be altered or varied
9Reorganisation directed by Treasurer
10Determination of initial capital
11Capital
12Repayment of capital
13Dividends
13AReports
Division 2—State bodies
14Establishment of State body
14ABorrowing and investment powers
15Shares
16Variation of Order in Council
16ARepayment of capital
16BDividends
16CDirections
Part 3—State Business Corporations
17Declaration of State business corporation
18Objective
19Functions
20Powers
21Functions and powers may be carried on outside Victoria
22Delegation
23Board of directors
24Constitution of board
25Appointment of directors
26Terms and conditions of appointment
27Acting chairman
28Acting deputy chairman
29Acting general director
30Vacancies, resignations, removal from office
31Validity of decisions
32Proceedings of a board
33Resolutions without meetings
34Delegation by board
35Disclosure of interests
36Duties of directors
37Minister may bring proceedings
38State business corporation not to make loans to directors
39Indemnity
40Chief executive officer and deputy
41Corporate plan
42Statement of corporate intent: contents
43State business corporation to act in accordance with corporate plan
44Nothing void merely because of non-compliance
45Non-commercial functions
46Determination of initial capital
47Capital
48Repayment of capital
49Dividends
50Repealed
51Continuing guarantees
52Appropriation for guarantee etc.
53Reports to Treasurer
54Board to notify relevant Minister and Treasurer of significant affecting events etc.
55Half-yearly reports
56–58Repealed
Part 4—Conversion to State Owned Company
59Declaration of statutory corporation as converting body
60Reservation of name under Corporations Act
61Memorandum and articles
62Capital structure of converting body
63Issue of shares in converting body
64Application for registration as a company
65Status and continuity
Part 5—State Owned Companies
Division 1—Declaration
66Declaration by Governor in Council
Division 2—Formation of company
67Treasurer may form or participate in formation of company
68Transfer of assets and liabilities
Division 3—Operation of State owned companies
69Principal objective
70Status
71Memorandum and articles
72Non-commercial activities
73Audit by Auditor-General
74Further accounts and reports
75Treasurer to present accounts and reports to Parliament
Part 6—Prescribed Bodies—Special Investigations
76Definition
77Appointment of special investigators
78Powers
79Copies of documents
80Immunity
81Publication
82Reports
83Expenses of investigation
84Offences
85Power to refer matters to police etc.
Part 7—General
86Competition and Consumer Act 2010 of the Commonwealth
86ACompetition policy authorisation—VicForests
87Subsidiaries
87ARepealed
88Tax equivalent
88AAApplication of section 88 to certain bodies
88AApplication of tax equivalents to other bodies
88BState owned enterprises to make certain payments
89Non-application of State taxation
90Application of certain other Acts
91Supreme Court—limitation of jurisdiction
92Regulations
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SCHEDULE 1—Provisions to be Included in Memorandum and Articles of Association of State Owned Companies
PART A—MEMORANDUM OF ASSOCIATION
1Entrenchment
2State Owned Enterprises Act 1992 to prevail
PART B—ARTICLES OF ASSOCIATION
1Interpretation
2Powers and duties of directors
3Shareholder approval for non-pro rata share issue
4Shareholder approval for sale or disposal of main
undertakings
5Shareholder approval for matters relating to ownership of subsidiaries
6Shareholder approval for amendment of memorandum or
articles of a subsidiary
7Dividends
8Limit on borrowing powers
9Limit on encumbrance of assets
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endNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
VersionNo. 040
State Owned Enterprises Act 1992
No. 90 of 1992
Versionincorporating amendments as at
31 October 2012
1
Part 2—Statutory Corporations: Reorganisation and Establishment of State Bodies
State Owned Enterprises Act 1992
No. 90 of 1992
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to provide for the reorganisation of certain statutory corporations;
(b)to provide that certain businesses conducted by the State be operated by—
(i)State business corporations; or
(ii)State owned companies;
(c)to regulate the constitution and relationship with the Government of State owned enterprises.
2Commencement
(1)Parts 1 and 6 come into operation on the day on which this Act receives the Royal Assent.
(2)The remaining provisions of this Act come into operation on a day or days to be proclaimed.
3Definitions
s. 3
In this Act—
S. 3 def. of ASC substituted as ASIC by No.44/2001 s.3(Sch. item104.1(a)).
ASIC means the Australian Securities and Investments Commission;
articles means articles of association and, in relation to the Gas and Fuel Corporation of Victoria, includes the Articles of Association contained in the Second Schedule to the Gas and Fuel Corporation Act 1958;
board, in relation to a statutory corporation or company, means the board of directors or governing body, by whatever name called, of the statutory corporation or company;
S. 3 def. of company substituted by No.44/2001 s.3(Sch. item104.1(b)).
company means a company within the meaning of the Corporations Act that is taken to be registered in Victoria;
constituting Act—
(a)in relation to a statutory corporation, means the Act under which the statutory corporation is incorporated;
(b)in relation to a State body means the Order in Council under which it was established;
S. 3 def. of conversion amended by No.44/2001 s.3(Sch. item104.1(c)).
conversion means the conversion of a converting body into a company on registration under section 118 of the Corporations Act;
converting body means a statutory corporation declared by Order in Council under section59 to be a converting body;
declared subsidiary means a subsidiary in respect of which a declaration under section87 is in force;
director, in relation to a State business corporation, means chairman, deputy chairman, preference director or general director;
existing capital, in relation to a converting body, means an amount equal to the excess of assets over liabilities of the converting body or, if there is no such excess, $5;
financial accommodation means a financial benefit or assistance to obtain a financial benefit arising from or as a result of—
s. 3
(a)a loan;
(b)issuing, endorsing or otherwise dealing in promissory notes;
(c)drawing, accepting, endorsing or otherwise dealing in bills of exchange;
(d)issuing, purchasing or otherwise dealing in securities;
(e)granting or taking a lease of any real or personal property for financing but not for operating purposes;
(f)any other arrangement that the Governor in Council on the recommendation of the Treasurer approves;
general director, in relation to a State business corporation, means a director, other than the chairman or deputy chairman or a preference director;
lease means—
(a)any lease, licence, charter or hiring arrangement of any real or personal property; or
(b)any arrangement under which a right to use, operate, manage or provide services in respect of any real or personal property is granted by the owner to another person;
memorandum means memorandum of association;
preference directormeans a director of the Gas and Fuel Corporation of Victoria appointed or elected by or on behalf of preference shareholders of the Corporation under its articles;
S. 3 def. of relevant Minister amended by Nos 56/1995
s. 57, 44/2001 s.3(Sch. item104.1(d)).
relevant Minister—
(a)in relation to a statutory corporation, means the Minister administering the constituting Act of the corporation; and
s. 3
(b)in relation to a State owned company, the Minister specified in the company's constitution; and
(c)in relation to a State body, means the Minister designated as the relevant Minister in the Order establishing the State body or, if no Minister is so designated, the Treasurer;
reorganising body means a statutory corporation declared by Order in Council under section 7 to be a reorganising body;
security includes inscribed stock and debenture, bond, debenture stock, notes or any other document creating, evidencing or acknowledging indebtedness in respect of financial accommodation whether constituting a charge on property or not;
State body means a body corporate established under section 14;
State business corporation means a statutory corporation declared by Order in Council under section 17 to be a State business corporation;
s. 3
State owned companymeans a company declared by Order in Council under section66 to be a State owned company;
State owned enterprisemeans—
(a)State business corporation;
(b)State owned company;
(c)State body;
S. 3 def. of statutory corporation amended by Nos 92/1993
s. 4(a), 44/2001 s.3(Sch. item104.1(e)).
statutory corporationmeans—
(a)a body corporate incorporated under an Act; or
(b)a State body—
and includes a reorganising body but does not include a body corporate incorporated, or taken to be incorporated, under the Corporations Act;
subsidiaryincludes a body declared by this Act to be a subsidiary;
wholly owned subsidiaryin relation to a reorganising body, means a subsidiary that is wholly owned by the body.
4Subsidiary
s. 4
S. 4(1) amended by Nos 92/1993
s. 4(b), 44/2001 s.3(Sch. item104.2(a)).
(1)For the purposes of this Act, the question whether a body corporate is a subsidiary (other than a declared subsidiary) of a State business corporation or a reorganising body shall be determined in the same manner as the question would be determined under the Corporations Act if the State business corporation or a reorganising body and the body corporate were corporations within the meaning of that Act.
S. 4(2) amended by No.44/2001 s.3(Sch. item104.2(b)).
(2)The question whether a body corporate is a subsidiary of a State owned company shall be determined in accordance with the Corporations Act.
S. 5
amended by No. 92/1993 s.5(a)(b).
5Act to prevail
If a provision of this Act or of an Order under this Act is inconsistent with a provision of the constituting Act of a statutory corporation or State body, or of any other Act conferring functions or powers on a statutory corporation, the provision of this Act or of the Order prevails.
6Act to bind Crown
This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
______
Part 2—Statutory Corporations: Reorganisation and Establishment of State Bodies
Division 1—Reorganising bodies
7Declaration of statutory corporation as reorganising body
s. 7
(1)The Governor in Council, by Order published in the Government Gazette, may declare a statutory corporation to be a reorganising body.
(2)A declaration under this section may be made for the purpose of the statutory corporation becoming a State business corporation or a State owned company, or for any other reason.
8Boards of reorganising body
(1)The Governor in Council, by Order published in the Government Gazette, may declare that the constitution of the board of a reorganising body is changed as specified in the Order.
(2)The Governor in Council may in the Order do any one or more of the following:
(a)Change the number of members of the board;
(b)Determine the qualifications of persons for, or terms and conditions of, appointment to the board;
(c)Determine the manner of appointment of the chairman, and deputy chairman;
(d)Make such other changes to the constitution of the board as the Governor in Council determines.
(3)The Governor in Council may appoint persons as members of the board of a reorganising body, whether or not the board has been reconstituted under this section.
(4)The Governor in Council may remove members of the board of a reorganising body, whether or not the board has been reconstituted under this section.
(5)A member of a board of a reorganising body removed from office under this section is not entitled to any remuneration or compensation for loss of office.
S. 8A
inserted by No. 92/1993 s.6.
8AFunctions may be altered or varied
s. 8A
The Governor in Council, on the recommendation of the Treasurer after consultation with the relevant Minister, may, by Order published in the Government Gazette, alter or vary the functions of a reorganising body.
9Reorganisation directed by Treasurer
(1)The Treasurer, after consultation with the relevant Minister, may direct a reorganising body to do any one or more of the following:
S. 9(1)(a) substituted by No.44/2001 s.3(Sch. item104.3).
(a)To form or acquire a company within the meaning of the Corporations Act that is taken to be registered in Victoria and that is a wholly owned subsidiary;
(b)To transfer to a wholly owned subsidiary or State body specified assets, liabilities or undertakings, in exchange for the issue of shares to the reorganising body, or otherwise;
(c)Transfer to a State owned enterprise or to another statutory corporation or to the State certain assets, liabilities or undertakings;
(d)To guarantee a particular liability, or the liabilities generally, of a wholly owned subsidiary or a State body;
(e)To sell assets, including its shares in a wholly owned subsidiary;
(f)To reorganise its affairs in anticipation of the reorganising body becoming a State business corporation or State owned company.
(2)Despite anything to the contrary in its constituting Act or in any other Act conferring functions or powers on it, a reorganising body may, under the authority of this Act, do all things necessary to comply with, and must comply with, a direction under subsection (1).
10Determination of initial capital
s. 10
(1)The Treasurer, after a statutory corporation is declared to be a reorganising body and after consultation with the board, may determine the amount of initial capital of the reorganising body for the purposes of this Act.
(2)In making the determination, the Treasurer shall have regard to any relevant advice that the board has given to the Treasurer.
(3)The determination shall be made in writing.
(4)The value of the capital is the value specified in the determination or, if the Treasurer and the board agree that the value so specified does not correctly represent the value, the value agreed by the Treasurer and the board.
11Capital
s. 11
(1)The capital of each reorganising body is equal to the sum of—
(a)the amount of the body's initial capital under this Act in accordance with section 10(1);
(b)any part of the body's liabilities that is converted into capital at the direction of the Treasurer;
(c)any amounts paid to the body out of money appropriated by the Parliament for the purpose of providing capital; and
(d)any part of the body's reserves that is converted into capital at the direction of the Treasurer after consultation with the board—
less any amounts of capital repaid under section12.
(2)Interest is not payable to the State on a reorganising body's capital.
12Repayment of capital
S. 12(1) amended by No. 92/1993
s. 7.
(1)The capital of a reorganising body is repayable to the State at such times, and in such amounts, as the Treasurer, after consultation with the relevant Minister directs in writing after consultation with the board.
(2)In giving a direction under this section, the Treasurer shall have regard to any advice that the board has given to the Treasurer in relation to the reorganising body's affairs.
13Dividends
Each reorganising body must pay to the State such dividend, at such time and in such manner, as is determined by the Treasurer after consultation with the board and the relevant Minister.
S. 13A inserted by No. 56/1995
s. 58.
13AReports
s. 13A
The Treasurer may require a reorganising body to prepare and deliver, at a time and in a manner specified by the Treasurer—
(a)such financial information as the Treasurer requires;
(b)a business plan in a form specified by the Treasurer;
(c)an annual report in a form specified by the Treasurer on the operations of the reorganising body;
(d)a report on such matters as are specified by the Treasurer.
Division 2—State bodies
14Establishment of State body
(1)The Governor in Council, by Order published in the Government Gazette, may establish, for the purposes of this Act, a State body by a name specified in the Order.
(2)The Order—
(a)must state the particular purpose of establishing the State body; and
(b)must state the functions and powers of the State body;
(c)if the State body is to be a subsidiary of a statutory corporation, must so state and name the particular statutory corporation;
(d)if the State body is to have a share capital, must state particulars of the share capital;
S. 14(2)(e) amended by No. 92/1993
s. 8(1)(a).
(e)must contain particulars of the constitution of the board of the State body;
S. 14(2)(ea) inserted by No. 92/1993
s. 8(1)(b).
(ea)may include provision for the appointment of directors by the Governor in Council;
S. 14(2)(eb) inserted by No. 56/1995
s. 59.
(eb)may designate a Minister as the relevant Minister for the purposes of this Act in relation to the State body;
s. 14
(f)may include such other particulars relating to the establishing or operation of the State body as the Governor in Council determines.
(3)A State body established under this section—
(a)is a body corporate with perpetual succession;
(b)shall have an official seal;
(c)may sue and be sued;
(d)may acquire, hold and dispose of real and personal property;
(e)may do and suffer all things that a body corporate may by law do and suffer.
(4)All courts must take judicial notice of the seal of a State body affixed to a document and, until the contrary is proved, must presume that it was duly affixed.
(5)The official seal must be kept in such custody as the State body directs and must not be used except as authorised by the State body.
S. 14A inserted by No. 45/1997
s. 35.
14ABorrowing and investment powers
s. 14A
A State body has such powers under the Borrowing and Investment Powers Act 1987 as are conferred on it by Order under section 17B of that Act.
15Shares
Shares in a State body must not be issued or dealt with except in accordance with an Order of the Governor in Council under this Division.
S. 16 amended by No. 92/1993
s. 8(2).
16Variation of Order in Council
The Governor in Council by Order published in the Government Gazette may alter or vary an Order made under this Part and make changes to the constitution, functions and powers and other matters affecting a State body (whether or not it has been declared under Part 3 to be a State business corporation).
S. 16A inserted by No. 92/1993
s. 9.
16ARepayment of capital
(1)The capital of a State body is repayable to the State at such times, and in such amounts, as the Treasurer directs in writing after consultation with the relevant Minister and the board of the State body.
(2)In giving a direction under this section, the Treasurer shall have regard to any advice that the board has given to the Treasurer in relation to the State body's affairs.
S. 16B inserted by No. 92/1993
s. 9.
16BDividends
Each State body must pay to the State such dividend, at such times and in such manner, as is determined by the Treasurer after consultation with the board and the relevant Minister.
S. 16C inserted by No. 92/1993
s. 9.
16CDirections
s. 16C
After consultation between the Treasurer and the relevant Minister, the Treasurer or relevant Minister may, from time to time, by written notice to the board, give such directions to the board as the Treasurer or relevant Minister thinks fit.
______
Part 3—State Business Corporations
17Declaration of State business corporation
s. 17
The Governor in Council, by Order published in the Government Gazette, may declare a statutory corporation to be a State business corporation.
18Objective
The principal objective of each State business corporation is to perform its functions for the public benefit by—
(a)operating its business or pursuing its undertaking as efficiently as possible consistent with prudent commercial practice; and
(b)maximising its contribution to the economy and well being of the State.
S. 19 amended by No. 92/1993
s. 10(1)(a)(b).
19Functions
(1)The functions of a State business corporation are—
S. 19(1)(a) amended by No. 92/1993
s. 10(1)(b).
(a)subject to this Act, the functions conferred on it by or under its constituting Act or an Act other than this Act; and
S. 19(1)(b) amended by No. 92/1993
s. 10(1)(b).
(b)the functions conferred on it by or under this Act.
S. 19(2) inserted by No. 92/1993
s. 10(2).
(2)The Governor in Council, on the recommendation of the Treasurer after consultation with the relevant Minister, by Order published in the Government Gazette, may alter or vary the functions of a State business corporation.