Schedule 1Provisions for inclusion in
constitution of the Corporation
(Section 8)
(cf State Owned
Corporations Act 1989, Schedule 6)
Provisions to the effect of the following
provisions are to be included in the constitution of the Corporation. Words
and expressions used in these provisions have the same meanings as in the
Central Coast Water Corporation Act
2006.
1Entrenchment
The constitution may not be altered or added to
in a way that is inconsistent with the provisions in Schedule 1 to the Central Coast Water Corporation Act
2006, unless and until resolutions approving the
alteration or addition have been passed by each of the constituent councils
within the meaning of that Act.
2Act to
prevail
(1)
The provisions of the Central Coast Water Corporation Act
2006 prevail over any inconsistent provisions of the
constitution of the Corporation.
(2)
The Corporation is expressly prohibited from
exercising any of its powers in contravention of any requirement of or under
section 24 or 25 of the Central Coast Water Corporation Act
2006.
3Shareholders
(1)
Only the constituent councils may hold shares in
the Corporation’s issued share capital.
(2)
A shareholder may not sell or otherwise dispose
of shares in the Corporation.
(3)
The Board is accountable to the voting
shareholders in the manner set out in Part 4 of the Central Coast Water Corporation Act
2006 and in the constitution of the
Corporation.
(4)
The Corporation may issue further shares to
shareholders, but no shareholder is obliged to acquire any such further
shares.
(5)
Only the voting shareholders may cast
votes.
(6)
The voting shareholders must at all times have an
equal number of shares and be in a position to cast an equal number of
votes.
4Subsidiaries
(1)
The Corporation may not form, participate in the
formation of or acquire subsidiaries without the prior written approval of the
voting shareholders.
(2)
The Corporation must ensure that the
constitutions of its subsidiaries at all times contain provisions to the
effect of those required by Schedule 2 to the Central Coast
Water Corporation Act 2006.
(3)
The Corporation must, to the maximum extent
practicable, ensure that every subsidiary complies with its constitution (if
any) and with the requirements of the Central Coast
Water Corporation Act 2006.
Schedule 2Provisions for inclusion in
constitutions of subsidiaries
(Section 9)
(cf State Owned
Corporations Act 1989, Schedule 7)
Provisions to the effect of the following
provisions are to be included in the constitution of each subsidiary of the
Corporation. Words and expressions used in these provisions have the same
meanings as in the Central Coast Water Corporation Act
2006.
1Entrenchment
The constitution may not be altered or added to
in a way that is inconsistent with the provisions in Schedule 2 to the Central Coast Water Corporation Act
2006, unless and until resolutions approving the
alteration or addition have been passed by both Houses of
Parliament.
2Act to
prevail
(1)
The provisions of the Central Coast Water Corporation Act
2006 prevail over any inconsistent provisions of the
constitution of the subsidiary.
(2)
The subsidiary is expressly prohibited from
exercising any power of the subsidiary in contravention of any requirement of
or under section 24 or 25 of the Central Coast
Water Corporation Act 2006.
3Shareholders
(1)
A shareholder that is a constituent council may
not sell or otherwise dispose of shares in the subsidiary otherwise than to
the Corporation or a subsidiary of the Corporation.
(2)
All decisions relating to the operation of the
subsidiary are to be made by or under the authority of the board of the
subsidiary.
(3)
The board of the subsidiary is accountable to the
voting shareholders in the manner set out in Part 4 of the Central Coast Water Corporation Act
2006 and in the constitution of the
subsidiary.
(4)
The subsidiary may issue further shares to its
shareholders, but no shareholder is obliged to acquire any such further
shares.
(5)
Shares may not be issued or transferred except
with the prior written approval of the voting shareholders of the
Corporation.
4Subsidiaries
(1)
The subsidiary may not form, participate in the
formation of or acquire subsidiaries without the prior written approval of the
voting shareholders of the Corporation.
(2)
The subsidiary must ensure that the constitutions
of each of its subsidiaries at all times contain provisions to the effect of
those required by Schedule 2 to the Central Coast
Water Corporation Act 2006.
(3)
The subsidiary must, to the maximum extent
practicable, ensure that each of its subsidiaries complies with its
constitution (if any) and with the requirements of the Central Coast Water Corporation Act
2006.
5Exercise of certain functions
restricted to Corporation’s area of operations
The subsidiary may not:
(a)
construct, operate, manage or maintain water
supply or sewage management works, or
(b)
provide water supply and sewage management
services, or
(c)
provide, operate, manage or maintain a stormwater
drainage system,
on, or for the benefit of, land situated outside the
Corporation’s area of operations.
Schedule 3Constitution and procedure of
Board
(Section 12)
(cf State Owned
Corporations Act 1989, Schedule 8)
1Application of this
Schedule
(1)
This Schedule applies in relation to the
Board.
(2)
This Schedule applies only to the extent to which
the constitution of the Corporation does not make provision for any matter
dealt with in this Schedule. However, the constitution cannot override clause
4 or 6.
2Chairperson
(1)
Of the directors of the Corporation, one is (in
and by the director’s instrument of appointment as director or in and by
another instrument executed by the Governor) to be appointed as Chairperson of
the Board.
(2)
Such an appointment is to be made on the
recommendation of the Minister following consultation with the voting
shareholders.
(3)
The Governor, on the recommendation of the voting
shareholders, may remove a director from the office of Chairperson of the
Board at any time for any or no reason and without
notice.
(4)
A person who is a director and Chairperson of the
Board vacates office as Chairperson in the circumstances set out in the
constitution of the Corporation or if the person:
(a)
is removed from that office under this clause,
or
(b)
resigns that office by letter addressed to the
voting shareholders, or
(c)
ceases to be a director of the
Corporation.
3Deputies
(1)
The voting shareholders may, from time to time,
appoint a person to be the deputy of a director of the Corporation, and the
voting shareholders may revoke any such appointment.
(2)
A director’s deputy may not be appointed
from the councillors or employees of a constituent council unless the director
was so appointed, as referred to in section 12 (5).
(3)
In the absence of a director, the
director’s deputy:
(a)
is, if available, to act in the place of the
director, and
(b)
while so acting, has all the functions of the
director and is taken to be a director of the
Corporation.
(4)
The deputy of a director who is Chairperson of
the Board does not have the director’s functions as Chairperson, unless
the constitution of the Corporation provides for this to
happen.
(5)
A person while acting in the place of a director
is entitled to be paid such remuneration (including travelling and subsistence
allowances) as the voting shareholders may from time to time determine in
respect of the person.
4Term of office of
directors
Subject to this Schedule, a director of the
Corporation holds office for such period (not exceeding 5 years) as may be
specified in the director’s instrument of
appointment.
5Remuneration
A director of the Corporation is entitled to be
paid such remuneration (including travelling and subsistence allowances) as
the voting shareholders may from time to time
determine.
6Vacancy in office of
director
(1)
The office of a director of the Corporation
becomes vacant in the circumstances set out in the constitution of the
Corporation or if the director:
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by letter addressed to the
voting shareholders, or
(d)
is removed from office by the Governor under this
clause or under Chapter 5 of the Public Sector
Employment and Management Act 2002, or
(e)
is absent from 4 consecutive meetings of the
Board of which reasonable notice has been given to the director personally or
in the ordinary course of post, except on leave granted by the Board or
unless, before the end of 4 weeks after the last of those meetings, the
director is excused by the Board for having been absent from those meetings,
or
(f)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(g)
becomes a mentally incapacitated person,
or
(h)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable.
(2)
The Governor, on the recommendation of the voting
shareholders, may remove a director of the Corporation from office at any time
for any or no reason and without notice.
7Filling of
vacancy
If the office of a director of the Corporation
becomes vacant, a person is, subject to this Act and the constitution of the
Corporation, to be appointed to fill the vacancy.
8Effect of certain other
Acts
(1)
The Public Sector
Employment and Management Act 2002 does not apply to the
appointment of a director of the Corporation. A director is not, as a
director, subject to that Act (except Chapter 5).
(2)
For the purposes of Chapter 5 of the Public Sector Employment and Management Act
2002:
(a)
the position of director of the Corporation is
taken to be a statutory office, and
(b)
in relation only to section 118 (7) of that Act,
the Corporation is taken to be a State owned
corporation.
(3)
If by or under any Act provision is made:
(a)
requiring a person who is the holder of a
specified office to devote the whole of his or her time to the duties of that
office, or
(b)
prohibiting the person from engaging in
employment outside the duties of that office,
the provision does not operate to disqualify the person
from holding that office and also the office of a director or from accepting
any remuneration payable to the person under this Act as such a
director.
9General
procedure
The procedure for the calling of meetings of the
Board and for the conduct of business at those meetings is, subject to this
Act, the regulations and the constitution of the Corporation, to be as
determined by the Board.
10Quorum
The quorum for a meeting of the Board is, subject
to the constitution of the Corporation, a majority of the directors for the
time being.
11Presiding
director
(1)
The Chairperson of the Board or, in the absence
of the Chairperson, another director elected to chair the meeting by the
directors present is (subject to the constitution of the Corporation) to
preside at a meeting of the Board.
(2)
The person presiding at any meeting of the Board
has (in accordance with the constitution of the Corporation) a deliberative
vote and, in the event of an equality of votes, has a second or casting
vote.
12Voting
A decision supported by a majority of the votes
cast at a meeting of the Board at which a quorum is present is (subject to the
constitution of the Corporation) the decision of the
Board.
13Transaction of business
otherwise than at ordinary meetings
(1)
The Board may, if it thinks fit, transact any of
its business by the circulation of papers among all the directors of the Board
for the time being. A resolution approved in writing by a majority of the
directors is taken to be a decision of the Board.
(2)
The Board may, if it thinks fit, transact any of
its business at a meeting at which directors (or some directors) participate
by telephone, closed-circuit television or other means, but only if any
director who speaks on a matter before the meeting can be heard by the other
directors.
(3)
For the purposes of:
(a)
the approval of a resolution under subclause (1),
or
(b)
a meeting held in accordance with subclause
(2),
the Chairperson and other directors have the same voting
rights as they have at an ordinary meeting of the Board.
(4)
A resolution approved under subclause (1) is,
subject to the regulations and the constitution of the Corporation, to be
recorded in the minutes of the meetings of the Board.
(5)
Papers may be circulated among directors for the
purposes of subclause (1) by fax or other transmission of the information in
the papers concerned.
14First
meeting
The voting shareholders may call the first
meeting of the Board in such manner as they think fit.
Schedule 4Chief executive
officer
(Section 13)
(cf State Owned
Corporations Act 1989, Schedule 9)
1Term of
office
Subject to this Schedule, the chief executive
officer holds office for such period (not exceeding 5 years) as may be
specified in the chief executive officer’s instrument of
appointment.
2Conditions of
employment
The Board may, after consultation with the voting
shareholders, fix the conditions of employment of the chief executive officer
in so far as they are not fixed by or under any other Act or
law.
3Remuneration
The chief executive officer is entitled to be
paid such remuneration (including travelling and subsistence allowances) as
the Board may determine.
4Performance
agreements
The Board may require the chief executive officer
to enter into performance agreements.
5Acting chief executive
officer
(1)
The Board may, from time to time, appoint a
person to act in the office of chief executive officer during the illness or
absence of the chief executive officer. The person, while so acting, has all
the functions of the chief executive officer and is taken to be the chief
executive officer.
(2)
The Board may remove a person from the office to
which the person was appointed under this clause, at any time for any or no
reason and without notice.
(3)
A person while acting in the office of chief
executive officer is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the Board may from time to time
determine in respect of the person.
(4)
For the purposes of this clause, a vacancy in the
office of chief executive officer is regarded as an absence from office of the
chief executive officer.
6Removal from
office
The voting shareholders may remove a person from
office as chief executive officer, at any time, for any or no reason and
without notice, but only on the recommendation of the
Board.
7Effect of certain other
Acts
(1)
The Public Sector
Employment and Management Act 2002 does not apply to the
appointment of the chief executive officer, and the chief executive officer is
not subject to that Act (except Chapter 5).
(2)
For the purposes of Chapter 5 of the Public Sector Employment and Management Act
2002:
(a)
the position of chief executive officer is taken
to be a statutory office, and
(b)
in relation only to section 118 (7) of that Act,
the Corporation is taken to be a State owned
corporation.
Schedule 5Transfer of staff, assets,
rights and liabilities
(Sections 32 and 41)
Part 1Preliminary
1Application and
interpretation
(1)
This Schedule applies to any transfer of staff,
assets, rights or liabilities pursuant to a transfer
order.
(2)
In this Schedule:
(a)
the person or body from which any staff, assets,
rights or liabilities are transferred is called the transferor, and
(b)
the person or body to which any staff, assets,
rights or liabilities are transferred is called the transferee.
2Date of
transfer
A transfer order takes effect on the date
specified in the order.
3Confirmation of
transfer
(1)
The Minister may, by notice in writing, confirm a
transfer of particular assets, rights or liabilities.
(2)
Such a notice is conclusive evidence of that
transfer.
Part 2Transfers of
staff
4Transfers
generally
Transferred staff are regarded for all purposes
as having become employees of the transferee, in accordance with the terms of
the order, on the day specified in the order as being the day on which the
transfer takes effect.
5General saving of conditions
of employment
Transferred staff are (until other provision is
duly made under any Act or law) to be continued to be employed in accordance
with any awards, agreements and determinations, and subject to any conditions,
that would have applied to them had they not been transferred but instead
remained as members of the staff of the transferor.
6Saving of
leave
Transferred staff retain any rights to annual
leave, extended service leave, sick leave, and other forms of leave, accrued
or accruing in their employment with the transferor.
7No payment out on transfer or
dual benefits
(1)
Transferred staff are not entitled to receive any
payment or other benefit merely because they cease to be members of staff of
the transferor.
(2)
Transferred staff are not entitled to claim, both
under this Act and under any other Act, dual benefits of the same kind for the
same period of service.
8Security of employment and
right of return
(1)
This clause applies to staff who are transferred
to the Corporation from a constituent council pursuant to a transfer order
under section 32 (1) (eligible
employees).
(2)
The employment of an eligible employee must not
be terminated on the grounds of redundancy during the period of 3 years
following the date of the transfer except with the employee’s
agreement.
(3)
An eligible employee may, within the period of 3
years following the date of the transfer, apply for a position in the
constituent council as if the employee were still an employee of that
council.
(4)
An eligible employee who applies for such a
position, or who is appointed to or employed in such a position, is, for the
purposes of the Local Government Act
1993, the Government and
Related Employees Appeal Tribunal Act 1980 and the Industrial Relations Act 1996, to be
taken to be an employee of the council in relation to the application,
appointment or employment.
(5)
There is no right of appeal under the Government and Related Employees Appeal Tribunal Act
1980:
(a)
for a person against the filling of a position in
the organisation structure of the council by an eligible employee,
or
(b)
for an eligible employee against the filling of a
position in the organisation structure of the council by another
person.
Part 3Transfers of assets, rights
and liabilities
9Vesting of undertaking in
transferee
(1)
When any assets, rights or liabilities are
transferred, the following provisions have effect:
(a)
the assets of the transferor vest in the
transferee by virtue of this clause and without the need for any further
conveyance, transfer, assignment or assurance,
(b)
the rights or liabilities of the transferor
become by virtue of this clause the rights or liabilities of the
transferee,
(c)
all proceedings relating to the assets, rights or
liabilities commenced before the transfer by or against the transferor or a
predecessor of the transferor and pending immediately before the transfer are
taken to be proceedings pending by or against the
transferee,
(d)
any act, matter or thing done or omitted to be
done in relation to the assets, rights or liabilities before the transfer by,
to or in respect of the transferor or a predecessor of the transferor is (to
the extent to which that act, matter or thing has any force or effect) taken
to have been done or omitted by, to or in respect of the
transferee,
(e)
a reference in any Act, in any instrument made
under any Act or in any document of any kind to:
(i)
the transferor, or
(ii)
any predecessor of the
transferor,
to the extent to which the reference relates to those
assets, rights or liabilities, is taken to be, or include, a reference to the
transferee.
(2)
The operation of this Schedule is not to be
regarded:
(a)
as a breach of contract or confidence or
otherwise as a civil wrong, or
(b)
as a breach of any contractual provision
prohibiting, restricting or regulating the assignment or transfer of assets,
rights or liabilities, or
(c)
as giving rise to any remedy by a party to an
instrument, or as causing or permitting the termination of any instrument,
because of a change in the beneficial or legal ownership of any asset, right
or liability, or
(d)
as an event of default under any contract or
other instrument.
(3)
No attornment to the transferee by a lessee from
the transferor is required.
(4)
A transfer is subject to the terms and conditions
of the order by which it is effected.
10No compensation
payable
No compensation is payable to any person or body
in connection with a transfer except to the extent (if any) to which the order
giving rise to the transfer so provides.
11Transfer of interests in
land
(1)
A transfer order may transfer an interest in
respect of land vested in the transferor without transferring the whole of the
interests of the transferor in that land.
(2)
If the interest transferred is not a separate
interest, the order operates to create the interest transferred in such terms
as are specified in the order.
(3)
This clause does not limit any other provision of
this Act.
12Consideration for
vesting
The Minister may, by order in writing, specify
the consideration on which a transfer is made and the value or values at which
the assets, rights or liabilities are transferred.
Schedule 6Duties and liabilities of
directors and other officers
(Section 55)
(cf State Owned
Corporations Act 1989, Schedule 10)
1Disclosure of interests by
directors
(1)
If a director of the Corporation has a direct or
indirect interest in a matter being considered, or about to be considered, by
the Board, the director must disclose the nature of the interest to a meeting
of the Board as soon as practicable after the relevant facts come to the
director’s knowledge.
Maximum penalty: 100 penalty
units.
(2)
The disclosure must be recorded in the minutes of
the Board’s meetings.
2Voting by interested
director
(1)
A director of the Corporation who has a material
personal interest in a matter that is being considered by the Board must
not:
(a)
vote on the matter, or
(b)
vote on a proposed resolution (a related
resolution) under subclause (2) in relation to the matter
(whether in relation to the director or another director),
or
(c)
be present while the matter, or a related
resolution, is being considered by the Board, or
(d)
otherwise take part in any decision of the Board
in relation to the matter or a related resolution.
Maximum penalty: 100 penalty
units.
(2)
Subclause (1) does not apply to the matter if the
Board has at any time passed a resolution that:
(a)
specifies the director, the interest and the
matter, and
(b)
states that the directors voting for the
resolution are satisfied that the interest should not disqualify the director
from considering or voting on the matter.
(3)
In determining whether a quorum is present at a
meeting of the Board during a consideration of such a matter by the Board,
only those directors are regarded as present who are entitled to vote on any
motion that may be moved in relation to the matter.
(4)
The voting shareholders may, by each signing
consent to a proposed resolution, deal with a matter if the Board cannot deal
with it because of subclause (3).
3Duty and liability of certain
officers of the Corporation
(1)
In this clause:
officer of the Corporation
means:
(a)
a director of the Corporation,
or
(b)
the Corporation’s chief executive officer,
or
(c)
another person who is concerned, or takes part,
in the Corporation’s management.
(2)
An officer of the Corporation must act honestly
in the exercise of powers, and discharge of functions, as an officer of the
Corporation.
Maximum penalty:
(a)
if the contravention is committed with intent to
deceive or defraud the Corporation, creditors of the Corporation or creditors
of another person or for another fraudulent purpose—500 penalty units or
imprisonment for 5 years, or
(b)
in any other case—100 penalty
units.
(3)
In the exercise of powers and the discharge of
functions, an officer of the Corporation must exercise the degree of care and
diligence that a reasonable person in a like position in the Corporation would
exercise in the Corporation’s circumstances.
Maximum penalty: 100 penalty
units.
(4)
An officer of the Corporation, or a person who
has been an officer of the Corporation, must not make improper use of
information acquired because of his or her position as an officer of the
Corporation:
(a)
to gain, directly or indirectly, an advantage for
himself or herself or for another person, or
(b)
to cause detriment to the
Corporation.
Maximum penalty: 500 penalty units or
imprisonment for 5 years.
(5)
An officer of the Corporation must not make
improper use of his or her position as an officer of the Corporation:
(a)
to gain, directly or indirectly, an advantage for
himself or herself or another person, or
(b)
to cause detriment to the
Corporation.
Maximum penalty: 500 penalty units or
imprisonment for 5 years.
(6)
If a person contravenes this clause in relation
to the Corporation, the Corporation may recover from the person as a debt due
to the Corporation:
(a)
if the person or another person made a profit
because of the contravention—an amount equal to the profit,
and
(b)
if the Corporation suffered loss or damage
because of the contravention—an amount equal to the loss or
damage.
(7)
An amount may be recovered from the person under
subclause (6) whether or not the person has been convicted of an offence in
relation to the contravention.
(8)
Subclause (6) is in addition to, and does not
limit, the Confiscation of Proceeds of Crime Act
1989.
(9)
In determining for the purposes of subclause (3)
the degree of care and diligence that a reasonable person in a like position
in the Corporation would exercise in the circumstances of the Corporation
concerned, regard must be had to:
(a)
the fact that the person is an officer of the
Corporation, and
(b)
the application of this Act to the Corporation,
and
(c)
relevant matters required or permitted to be done
under this Act in relation to the Corporation,
including, for example, any relevant directions,
notifications or approvals given to the Corporation by the Corporation’s
voting shareholders or constituent councils.
(10)
Subclause (9) does not limit the matters to which
regard may be had for the purposes of subclause (3).
(11)
This clause:
(a)
is in addition to, and does not limit, any rule
of law relating to the duty or liability of a person because of the
person’s office in relation to a corporation, and
(b)
does not prevent civil proceedings being
instituted for a breach of the duty or the
liability.
4Prohibition on loans to
directors
(1)
The Corporation must not, whether directly or
indirectly:
(a)
make a loan to a director, a spouse or de facto
partner of a director or a relative of a director, spouse or de facto partner,
or
(b)
give a guarantee or provide security in
connection with a loan made to a director, a spouse or de facto partner of a
director or a relative of a director, spouse or de facto
partner.
(2)
Subclause (1) does not apply to the entering into
by the Corporation of an instrument with a person mentioned in subclause (1)
if the instrument is entered into on the same terms as similar instruments (if
any) are entered into by the Corporation with members of the
public.
(3)
A director of the Corporation who is knowingly
concerned in a contravention of subclause (1) by the Corporation (whether or
not in relation to the director) commits an offence.
Maximum penalty: 100 penalty
units.
(4)
In this clause:
de facto
partner, in relation to a director, means the other party to
a de facto relationship (within the meaning of the Property (Relationships) Act 1984) with
the director.
relative means:
(a)
a parent or remoter lineal ancestor,
or
(b)
a son, daughter or remoter issue,
or
(c)
a brother or sister.
5Corporation not to indemnify
officers
(1)
The Corporation must not:
(a)
indemnify a person who is or has been an officer
of the Corporation against a liability incurred as an officer,
or
(b)
exempt a person who is or has been an officer of
the Corporation from a liability incurred as an
officer.
(2)
An instrument is void so far as it provides for
the Corporation to do something that subclause (1)
prohibits.
(3)
Subclause (1) does not prevent the Corporation
from indemnifying a person against civil liability (other than a liability to
the Corporation or a subsidiary of the Corporation) unless the liability
arises out of conduct involving a lack of good faith.
(4)
Subclause (1) does not prevent the Corporation
from indemnifying a person against a liability for costs and expenses incurred
by the person:
(a)
in defending a proceeding, whether civil or
criminal, in which judgment is given in favour of the person or in which the
person is acquitted, or
(b)
in connection with an application in relation to
a proceeding in which relief is granted to the person by a
court.
(5)
The Corporation may give an indemnity mentioned
in subclause (3) or (4) only with the prior approval of the voting
shareholders.
(6)
In this clause:
indemnify includes indemnify
indirectly through one or more interposed entities.
officer of the Corporation
means:
(a)
a director of the Corporation,
or
(b)
the Corporation’s chief executive officer,
or
(c)
another person who is concerned, or takes part,
in the Corporation’s management.
6Corporation not to pay
premiums for certain liabilities of officers
(1)
The Corporation must not pay, or agree to pay, a
premium in relation to a contract insuring a person who is or has been an
officer of the Corporation against a liability:
(a)
incurred by the person as an officer,
and
(b)
arising out of conduct involving:
(i)
a wilful breach of duty in relation to the
Corporation, or
(ii)
without limiting subparagraph (i), a
contravention of clause 3 (4) or (5).
(2)
Subclause (1) does not apply to a liability for
costs and expenses incurred by a person in defending proceedings, whether
civil or criminal, and whatever their outcome.
(3)
An instrument is void so far as it insures a
person against a liability in contravention of subclause
(1).
(4)
In this clause:
officer of the Corporation
means:
(a)
a director of the Corporation,
or
(b)
the Corporation’s chief executive officer,
or
(c)
another person who is concerned, or takes part,
in the Corporation’s management.
pay includes pay indirectly through
one or more interposed entities.
7Director’s duty to
prevent insolvent trading
(1)
If:
(a)
immediately before the Corporation incurs a
debt:
(i)
there are reasonable grounds to suspect that the
Corporation will not be able to pay all its debts as and when they become due,
or
(ii)
there are reasonable grounds to suspect that, if
the Corporation incurs the debt, it will not be able to pay all its debts as
and when they become due, and
(b)
the Corporation is, or later becomes, unable to
pay all its debts as and when they become due,
a person who is a director of the Corporation, or takes
part in the Corporation’s management, at the time when the debt is
incurred commits an offence.
Maximum penalty: 100 penalty units or
imprisonment for 1 year.
(2)
In a proceeding against a person for an offence
against this clause, it is a defence if it is proved:
(a)
that the debt was incurred without the
person’s express or implied authority or consent, or
(b)
that, at the time when the debt was incurred, the
person did not have reasonable cause to suspect:
(i)
that the Corporation would not be able to pay all
its debts as and when they became due, or
(ii)
that, if the Corporation incurred that debt, it
would not be able to pay all its debts as and when they became due,
or
(c)
that the person took all reasonable steps to
prevent the Corporation from incurring the debt, or
(d)
in the case of a director—that the person
did not take part at the time in the Corporation’s management because of
illness or for some other good cause.
8Court may order
compensation
(1)
If a person is found guilty of an offence against
clause 7 (Director’s duty to prevent insolvent trading) in relation to
the incurring of a debt by the Corporation, the Supreme Court may declare that
the person is to be personally responsible without any limitation of liability
for the payment to the Corporation of the amount required to satisfy the part
of the Corporation’s debts that the Court considers
proper.
(2)
This clause does not affect any rights of a
person to indemnity, subrogation or contribution.
(3)
This clause:
(a)
is in addition to, and does not limit, any rule
of law about the duty or liability of a person because of the person’s
office in relation to a corporation, and
(b)
does not prevent proceedings being instituted for
a breach of the duty or the liability.
9Examination of persons
concerned with Corporation
(1)
If it appears to the Attorney General
that:
(a)
a person who has been concerned, or taken part,
in the Corporation’s management, administration or affairs has been, or
may have been, guilty of fraud, negligence, default, breach of trust or breach
of duty or other misconduct in relation to the Corporation,
or
(b)
a person may be capable of giving information in
relation to the Corporation’s management, administration or
affairs,
the Attorney General may apply to the Supreme Court or
the District Court for an order under this clause in relation to the
person.
(2)
The court may order that the person attend before
the court at a time and place fixed by the court to be examined on oath on any
matters relating to the Corporation’s management, administration or
affairs.
(3)
The examination of the person is to be held in
public except so far as the court considers that, because of special
circumstances, it is desirable to hold the examination in
private.
(4)
The court may give directions about:
(a)
the matters to be inquired into at the
examination, and
(b)
the procedures to be followed at the examination
(including, if the examination is to be held in private, the persons who may
be present).
(5)
The person must not fail, without reasonable
excuse:
(a)
to attend as required by the order,
or
(b)
to continue to attend as required by the court
until the completion of the examination.
Maximum penalty: 200 penalty units or
imprisonment for 2 years.
(6)
The person must not fail to take an oath or make
an affirmation at the examination.
Maximum penalty: 200 penalty units or
imprisonment for 2 years.
(7)
The person must not fail to answer a question
that the person is directed by the court to answer.
Maximum penalty: 200 penalty units or
imprisonment for 2 years.
(8)
The person may be directed by the court (whether
in the order or by subsequent direction) to produce any document in the
person’s possession, or under the person’s control, relevant to
the matters on which the person is to be, or is being,
examined.
(9)
The person must not, without reasonable excuse,
contravene a direction under subclause (8).
Maximum penalty: 200 penalty units or
imprisonment for 2 years.
(10)
If the court directs the person to produce a
document and the person has a lien on the document, the production of the
document does not prejudice the lien.
(11)
The person must not knowingly make a statement at
the examination that is false or misleading in a material
particular.
Maximum penalty: 500 penalty units or
imprisonment for 5 years.
(12)
The person is not excused from answering a
question put to the person at the examination on the ground that the answer
might tend to incriminate the person or make the person liable to a
penalty.
(13)
If:
(a)
before answering a question put to the person at
the examination, the person claims that the answer might tend to incriminate
the person or make the person liable to a penalty, and
(b)
the answer might in fact tend to incriminate the
person or make the person liable to a penalty,
the answer is not admissible in evidence against the
person in:
(c)
a criminal proceeding, or
(d)
a proceeding for the imposition of a
penalty,
other than a proceeding for an offence against this
clause or another proceeding in relation to the falsity of the
answer.
(14)
The court may order the questions put to the
person and the answers given by the person at the examination to be recorded
in writing and may require the person to sign the
record.
(15)
Subject to subclause (13), any written record of
the examination signed by the person, or any transcript of the examination
that is authenticated by the signature of the examiner, may be used in
evidence in any legal proceeding against the person.
(16)
The person may, at his or her own expense, employ
counsel or a solicitor, and the counsel or solicitor may put to the person
questions that the court considers just for the purpose of enabling the person
to explain or qualify any answers given by the person.
(17)
The court may adjourn the examination from time
to time.
(18)
If the court is satisfied that the order for the
examination of the person was obtained without reasonable cause, the court may
order the whole or any part of the costs incurred by the person be paid by the
State.
10Power to grant
relief
(1)
This clause applies to a director, the chief
executive officer or an employee of the Corporation.
(2)
If, in a proceeding against a person to whom this
clause applies for negligence, default, breach of trust or breach of duty as a
person to whom this clause applies, it appears to the court that:
(a)
the person is or may be liable for the
negligence, default or breach, but
(b)
the person has acted honestly and, having regard
to all the circumstances of the case (including circumstances connected with
the person’s appointment) the person ought fairly to be excused for the
negligence, default or breach,
the court may relieve the person (in whole or part) from
liability on terms that the court considers appropriate.
(3)
If a person to whom this clause applies believes
that a claim will or might be made against the person for negligence, default,
breach of trust or breach of duty as a person to whom this clause applies, the
person may apply to the Supreme Court or the District Court for
relief.
(4)
The court has the same power to relieve the
person as it would have if a proceeding had been brought against the person in
the court for the negligence, default or breach.
(5)
If:
(a)
a proceeding mentioned in subclause (2) is being
tried by a Judge with a jury, and
(b)
the Judge, after hearing the evidence, is
satisfied that the defendant ought under that subclause be relieved (in whole
or part) from the liability sought to be enforced against the
person,
the Judge may withdraw the case (in whole or part) from
the jury and direct that judgment be entered for the defendant on the terms
(as to costs or otherwise) that the Judge considers
appropriate.
11False or misleading
information or documents
(1)
In this clause:
officer of the Corporation
means:
(a)
a director of the Corporation,
or
(b)
the Corporation’s chief executive officer,
or
(c)
an employee of the
Corporation.
(2)
An officer of the Corporation must not:
(a)
make a statement concerning the affairs of the
Corporation to another officer or the voting shareholders that the first
officer knows is false or misleading in a material particular,
or
(b)
omit from a statement concerning the
Corporation’s affairs made to another officer or the voting shareholders
anything without which the statement is, to the first officer’s
knowledge, misleading in a material particular.
(3)
An information or complaint against a person for
an offence against subclause (2) (a) or (b) is sufficient if it states that
the information given was false or misleading to the person’s
knowledge.
(4)
An officer of the Corporation must not give to
another officer or the voting shareholders a document containing information
that the first officer knows is false, misleading or incomplete in a material
particular without:
(a)
indicating to the recipient that the document is
false, misleading or incomplete and the respect in which the document is
false, misleading or incomplete, and
(b)
giving the correct information to the recipient
if the first officer has, or can reasonably obtain, the correct
information.
Maximum penalty:
(a)
if the contravention is committed with intent to
deceive or defraud the Corporation, creditors of the Corporation or creditors
of another person or for another fraudulent purpose—500 penalty units or
imprisonment for 5 years, or
(b)
in any other case—100 penalty
units.
12Notice of suspected insolvency
otherwise than because of direction or notification
(1)
If:
(a)
the Board suspects that the Corporation or a
subsidiary of the Corporation is, may be, will or may become insolvent,
and
(b)
in the Board’s opinion, compliance with a
direction or notification given by the voting shareholders is not or would not
be the cause or a substantial cause of the suspected
insolvency,
the Board must immediately give written notice to the
voting shareholders of:
(c)
the suspicion, and
(d)
its reasons for the
opinion.
(2)
The notice must state that it is given under this
clause.
(3)
If the voting shareholders are satisfied that the
Board’s suspicion is well-founded, the voting shareholders must
immediately give the Board the written directions that the voting shareholders
consider necessary or desirable, including any directions necessary or
desirable to ensure:
(a)
that the Corporation or subsidiary does not incur
further debts, or
(b)
that the Corporation or subsidiary will be able
to pay all its debts as and when they become due.
(4)
Without limiting subclause (3), a direction under
this clause may require the Corporation or any of its subsidiaries to cease or
limit particular activities.
(5)
The Board must ensure that a direction under this
clause is complied with in relation to the Corporation and must, as far as
practicable, ensure that it is complied with in relation to its
subsidiaries.
(6)
This clause is in addition to, and does not
limit, another provision of this Act or another law.
13Application of Corporations
Act 2001 of the Commonwealth to officers of Corporation
subsidiaries
(1)
In determining for the purposes of the Corporations
Act 2001 of the Commonwealth the degree of care and
diligence that a reasonable person in a like position in a subsidiary of the
Corporation would exercise in the circumstances of the subsidiary concerned,
regard must be had to:
(a)
the application of this Act to the Corporation
and subsidiary, and
(b)
relevant matters required or permitted to be done
under this Act in relation to the Corporation and
subsidiary,
including, for example, any relevant directions,
notifications or approvals given to the Corporation by the Corporation’s
voting shareholders or constituent councils.
(2)
This section has effect despite the Corporations
Act 2001 of the Commonwealth.
sch 6: Am 2008 No 23,
Sch 3.7 [1]–[3].
Schedule 7Amendment of other
Acts
(Section 61)
7.1Independent Pricing and Regulatory Tribunal Act
1992 No 39
[1]Section 3
Definitions
Insert “, water supply authority”
after “state owned corporation” in the definition of government agency in section 3
(1).
[2]Section 3
(1)
Insert in alphabetical order:
water
supply authority has the same meaning as it has in the
Water Management Act
2000.
[3]Section 24F Regulatory
functions of Tribunal
Insert after section 24F (d):
(d1)
section 51 of the Central Coast
Water Corporation Act 2006,
and
[4]Section 24FC Licence auditing
functions of Tribunal
Insert after section 24FC (1) (c):
(c1)
its functions in connection with operational
audits under section 52 of the Central Coast
Water Corporation Act 2006,
and
[5]Schedule 1 Government agencies
for which Tribunal has standing reference
Omit “constituted under the Water Management Act 2000” from
the matter relating to water supply authorities.
7.2Water
Management Act 2000 No 92
[1]Section 286 Constitution of
water supply authorities
Insert after section 286 (5):
(6)
The Governor may, by proclamation published in
the Gazette, omit the name of a water supply authority from Part 4 of Schedule
3.
(7)
The regulations may make provision of a savings
or transitional nature consequent on a proclamation under subsection
(6).
[2]Schedule 3 Water supply
authorities
Omit the following from Part 2 of Schedule
3:
Gosford City Council
Wyong Council
[3]Schedule 3, Part
3
Omit “Australian Inland Energy Water
Infrastructure”.
Insert instead “Country
Energy”.
[4]Schedule 3, Part
4
Insert after Part 3 of Schedule 3:
Part 4Council owned
corporations
Central Coast Water
Corporation
Schedule 8Savings, transitional and
other provisions
(Section 62)
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2Provisions consequent on
enactment of this Act
2Previous acts, matters or
things
(1)
Any act, matter or thing that, before the
Corporation became a water supply authority, had been done by either of the
constituent councils, in its capacity as a water supply authority, continues
to have effect as if it had been done by the
Corporation.
(2)
Subject to any restrictions imposed by or under
this or any other Act, the Corporation may vary or revoke any act, matter or
thing so continued.
3Existing development
applications and other matters
(1)
This clause applies to development or an activity
relating to:
(a)
buildings, works or other infrastructure
transferred to the Corporation from the constituent councils under this Act,
or
(b)
a function conferred on the Corporation under
this Act that was, immediately before its conferral, conferred on a
constituent council.
(2)
A development application relating to a matter
referred to in subclause (1) that, before the date on which:
(a)
the relevant building, work or other
infrastructure was transferred to the Corporation, or
(b)
the relevant function was conferred on the
Corporation,
had been made by a constituent council under the Environmental Planning and Assessment Act
1979, but had not been finally determined, is taken to
have been made by the Corporation.
(3)
An environmental impact statement relating to a
matter referred to in subclause (1) that, before the date on which:
(a)
the relevant building, work or other
infrastructure was transferred to the Corporation, or
(b)
the relevant function was conferred on the
Corporation,
had been prepared by a constituent council under the
Environmental Planning and Assessment Act
1979, but had not been considered, is taken to have been
prepared by the Corporation.
4Licences and other
authorisations
(1)
This clause applies to an authorisation granted
to a constituent council under any of the following Acts or under a regulation
under any of those Acts, and in force immediately before the commencement of
this clause:
(a)
the Environmental
Planning and Assessment Act 1979,
(b)
the Occupational
Health and Safety Act 2000,
(c)
the Protection of the
Environment Operations Act 1997,
(d)
the Water Act
1912,
(e)
the Water Management
Act 2000,
(f)
any other Act prescribed by the
regulations.
(2)
An authorisation is, to the extent that it
relates to transferred functions or assets, taken to be held by the
Corporation on the same terms and conditions as the constituent council held
the authorisation immediately before the commencement of this
clause.
(3)
The regulations may exempt an authorisation from
the operation of this clause.
(4)
Nothing in this clause prevents an authorisation
from being varied, cancelled or replaced.
(5)
In this clause:
authorisation includes a licence,
permit or approval.
transferred functions or assets
means functions conferred on, or assets, rights or liabilities vested in, the
Corporation by or under this Act, that were, immediately before the conferral
or vesting, conferred on, or vested in, the Ministerial Corporation, the State
or a public or local authority.
5Deemed licences and
approvals
(1)
For the purposes of Part 9 of the Water Act 1912, the Corporation is
taken, at the time of transfer, to have been granted a water management
licence under section 188 of that Act, for each water management work
transferred to the Corporation by or under this Act (a deemed
water management licence).
(2)
A deemed water management licence does not
authorise the Corporation to take and use water from any water
source.
(3)
The Ministerial Corporation is not required to
comply with section 189 (3) of the Water Act
1912 in relation to any condition that it imposes on a
deemed water management licence within 6 months after the date that the
licence is taken to have been granted.
(4)
If water management works are transferred to the
Corporation by or under this Act, the Corporation is taken on the date of the
transfer to have been granted all relevant approvals under Part 3 of Chapter 3
of the Water Management Act
2000 required to allow the Corporation to use those works
in accordance with the Corporation’s functions (a deemed
approval).
(5)
A deemed approval is subject to the provisions of
the Water Management Act 2000 as if the
approval had been granted under Division 2 of Part 3 of Chapter 3 of that Act
at the time of the transfer of the relevant water management works, and
accordingly it may be subjected to conditions, suspended or cancelled in
accordance with that Act.
(6)
The Minister administering the Water Management Act 2000 is not
required to comply with section 102 (1) of that Act in relation to any
discretionary condition imposed on a deemed approval within 6 months after the
date that the approval is taken to have been granted.
(7)
Part 5 of the Environmental
Planning and Assessment Act 1979 does not apply to or in
respect of a deemed water management licence or a deemed
approval.
(8)
The Corporation is taken to hold any other
licence or approval necessary under the Water Management
Act 2000 or the Water Act
1912 to allow it to take and use water in the exercise of
its functions.
(9)
Any licence or approval under subclause (8) is
taken to have effect for a period of 12 months commencing on the date of
commencement of this clause or for such longer period as may be prescribed by
the regulations.
6Continuation of certain IPART
determinations
The regulations may, in either unmodified or in
modified form, apply to the Corporation, on and from the date on which it
becomes a water supply authority, any pricing determination that, immediately
before that date, applied to either or both of the constituent councils in
their capacity as water supply authorities.
7Security of employment for
staff of constituent councils
(1)
The employment of any member of staff of a
constituent council (other than a senior staff member within the meaning of
the Local Government Act 1993) must not be
terminated on the grounds of redundancy arising from:
(a)
the exercise by the Corporation of functions
formerly exercised by the council, or
(b)
the proposed exercise by the Corporation of
functions currently exercised by the council.
(2)
This clause ceases to have effect on the third
anniversary of the commencement of section 4.
sch 8: Am 2007 No 27,
Sch 2.7.