Australian Capital Territory

Territory Owned Corporations Act 1990     No 53
Republication No 6B
As in force on 21 December 2000
Includes all amendments up to Act 2000 No 80

Prepared by the ACT Parliamentary Counsel’s Office
This republication is not an authorised republication for the Legislation (Republication) Act 1996.
As in force on
21 December 2000

Australian Capital Territory

Territory Owned Corporations Act 1990
CONTENTS
	Page 

As in force on
21 December 2000

Australian Capital Territory

Territory Owned Corporations Act 1990
An Act An Act to provide for the establishment of Government enterprises as Territory owned corporations
Part 1—Preliminary
1 	Short title
	This Act may be cited as the Territory Owned Corporations Act 1990.
3 	Definitions
(1)		In this Act:
Note	A definition applies except so far as the contrary intention appears (see Interpretation Act 1967, s 11G).
borrowing, in relation to a Territory owned corporation or a subsidiary, includes raising money or obtaining credit, whether by dealing in securities or otherwise, but does not include obtaining credit in a transaction forming part of the day-to-day operations of the corporation or subsidiary.
company means a body corporate limited by shares that is a company for the purposes of the Corporations Law.
group, in relation to a Territory owned corporation, means the corporation and any subsidiary.
non-voting share means a share in a Territory owned corporation that is not a voting share. 
Portfolio Minister, in relation to a Territory owned corporation, means the Minister who has administrative responsibility in respect of the corporation.
securities, includes stocks, debentures, debenture stocks, notes, bonds, promissory notes, bills of exchange and similar instruments or documents.
statement of corporate intent means a statement prepared in accordance with section 20.
subsidiary, in relation to a Territory owned corporation, means a body corporate that—
	(a)	under the Corporations Law is a subsidiary of the corporation; and
	(b)	all of the issued share capital of which is held by or on behalf of the corporation.
Territory owned corporation means a company referred to in subsection 6 (1).
voting share means a share in a Territory owned corporation that confers the right to vote at a general meeting. 
voting shareholder, in relation to a Territory owned corporation, means the holder of a share in the corporation that confers the right to vote at a general meeting.
(2)		A reference to a voting shareholder is, in relation to a group or a subsidiary, a reference to a voting shareholder of the Territory owned corporation that—
	(a)	 in the case of a group, is the holding company of the group; and
	(b)	in the case of a subsidiary, is the ultimate holding company of the subsidiary.
(3)		A reference to the voting shareholders is a reference to the voting shareholders acting in concert.
4 	Application
(1)		In its application to ACTEW Corporation Limited, this Act applies subject to the modifications specified in Schedule 4.
(2)		In its application to ACTTAB Limited, and to the staff of ACTTAB Limited, this Act applies subject to the modifications specified in 
Schedule 5.

Part 2—Establishment Of Corporations
6 	Territory owned corporations
(1)		A company specified in Schedule 1 is a Territory owned corporation.
(2)		The regulations may amend Schedule 1 to reflect a change in the name of a company.
7 	Principal objective of corporations
	The principal objective of a Territory owned corporation is to carry on business successfully and, to this end—
	(a)	to operate at least as efficiently as any comparable business; and
	(b)	to maximise the sustainable return to the Territory on its investment in the corporation in accordance with the performance targets contained in the latest statement of corporate intent of the corporation.
8 	Status
(1)		Subject to this and any other Act, a Territory owned corporation or a subsidiary, by reason only of its status as such—
	(a)	is not entitled to any immunity or privilege of the Crown; and
	(b)	is not and does not represent the Territory; and
	(c)	is not exempt from a tax, duty, fee or charge payable under an Act.
(2)		The Territory is not liable for the debts, liabilities and obligations of a Territory owned corporation or a subsidiary unless—
	(a)	this or another Act provides that the Territory is liable; or
	(b)	the Territory agrees to be liable.
9 	Notification to the Assembly
(1)		Where a company becomes a Territory owned corporation or a subsidiary, the Portfolio Minister shall, within 15 sitting days of the occurrence, lay before the Legislative Assembly—
	(a)	a statement setting out—
	(i)	the names of the shareholders; and
	(ii)	a description of the principal activities to be carried out by the company; and
	(b)	a copy of the constitution of the company.
(2)		If there is a change in a matter specified in the statement or in the constitution, the Minister shall, within 15 sitting days of the change, lay before the Legislative Assembly a further statement setting out—
	(a)	in the case of a change in a matter specified in paragraph (1) (a)—details of the change; and
	(b)	in the case of a change in the constitution—a summary of the change.
10 	Legal obligations
	The obligations imposed by this Act on a company or the directors or shareholders of a company are additional to the obligations that are imposed upon them by any other law or the constitution of the company.
11 	Constitution
(1) 	The voting shareholders of a Territory owned corporation must ensure that the constitution of the corporation or any subsidiary always contains provisions to the effect of those required by Schedules 2 and 3.
(2) 	If the constitution of a company that becomes a Territory owned corporation or subsidiary does not comply with Schedule 2 or 3, the voting shareholders must ensure that compliance is achieved as soon as possible.
(3) 	The Legislative Assembly may approve a provision in the constitution of a Territory owned corporation or subsidiary that is inconsistent with this Act.
(4) 	A provision in the constitution of a Territory owned corporation or subsidiary that—
	(a)	is inconsistent with this Act; and
	(b)	has not been approved by the Legislative Assembly;
is of no effect to the extent of the inconsistency.
12 	Directors
(1)	Subject to this section, a person is not eligible to be appointed as director of a Territory owned corporation or a subsidiary unless, in the opinion of the voting shareholders, he or she has the expertise or skills necessary to assist the corporation to achieve its principal objective.
(2) 	Subject to subsection (3), the voting shareholders shall not—
	(a)	appoint a director of a Territory owned corporation; or
	(b)	consent to the appointment of a director of a subsidiary;
unless, before so doing, they have—
	(c)	consulted with the relevant committee; and 
	(d)	considered any recommendation made by the committee, being a recommendation made within 30 days after the consultation.
(3) 	Where, for any reason, the number of directors of a Territory owned corporation or a subsidiary falls below—
	(a)	if the constitution of the corporation or subsidiary provides or provide for the minimum number of directors—that number; or
	(b)	in any other case—the minimum number of directors required under the Corporations Law; 
the voting shareholders are not required to comply with subsection (2) in relation to an appointment that, when made, will raise the number of directors to the number referred to in paragraph (a) or (b), as the case requires.
(4) 	In this section:
relevant committee means—
	(a)	a standing committee of the Legislative Assembly nominated by the Speaker of the Legislative Assembly for the purposes of this section; or
	(b)	where no nomination in paragraph (a) is in effect—the standing committee of the Legislative Assembly responsible for the scrutiny of public accounts. 
13 	Shares in corporations
(1) 	The Chief Minister may, in writing, authorise a person to participate in the formation of a company that it is intended will become a Territory owned corporation or a subsidiary.
(2) 	The Chief Minister may, in writing, authorise a person to hold, on behalf of the Territory, a voting share in a company that is, or it is intended will become, a Territory owned corporation.
(3) 	The Treasurer may, in writing, authorise a person to hold, on behalf of the Territory, a non-voting share in a company that is, or it is intended will become, a Territory owned corporation.
(4) 	A person is eligible to hold a share or a right relating to a share in a Territory owned corporation only if—
	(a)	in the case of a voting share—he or she is a Minister and has been authorised under subsection (2); or
	(b)	in the case of a non-voting share—
	(i)	he or she has been authorised under subsection (3); or
	(ii)	the person is a Territory owned corporation; or
	(c)	the person is eligible under subsection (9).
(5) 	Subject to subsection (9), a person who holds a share or a right relating to a share in a Territory owned corporation holds the share or right on trust for the Territory.
(6) 	The Chief Minister may, in writing, direct a person who holds a voting share or a right relating to a voting share on trust for the Territory to transfer it to another person named in the instrument.
(7) 	The Treasurer may, in writing, direct a person who holds a non-voting share or a right relating to a non-voting share on trust for the Territory to transfer it to a person (including the corporation that has issued the share or right) named in the instrument.
(8) 	A direction under subsection (6) or (7) is effective only if—
	(a)	the proposed transferee is eligible under paragraph (4) (a) or (b) to hold the share or right; or
	(b)	the Legislative Assembly has, by resolution, approved the direction.
(9) 	If the Legislative Assembly approves a direction under paragraph (8) (b), a person to whom a share or right is transferred pursuant to the direction—
	(a)	is eligible to hold the share or right; but
	(b)	subsection (5) does not apply to the person in relation to the share or right so transferred.
(10) 	A person who holds a share or right on trust for the Territory may not transfer it otherwise than under a direction under this section.
14 	Acquisition of subsidiaries
(1)		A Territory owned corporation or a subsidiary shall not enter into a specified transaction if, as a result of the transaction, a company would or could become a partially owned subsidiary of the Territory owned corporation or subsidiary.
(2)		In this section:
partially owned subsidiary means a company that—
	(a)	is a subsidiary, within the meaning of the Corporations Law, of a Territory owned corporation or subsidiary; and
	(b)	not all of the issued share capital of which is held by or on behalf of the corporation or subsidiary.
specified transaction means—
	(a)	the participation, whether direct or indirect, in the formation of a company; or
	(b)	the acquisition of shares in a company; or
	(c)	an agreement to underwrite the issue of shares in a company or proposed company; or
	(d)	the lending of money on the security of shares in a company.

Part 3—Accountability
15 	Provision of information
	A Territory owned corporation or a subsidiary shall, upon request, provide to the voting shareholders all the information that they may require.
16 	Acquisition and disposal of subsidiaries and undertakings
(1)		A Territory owned corporation or a subsidiary shall not, without the prior written consent of the voting shareholders—
	(a)	dispose of any of its main undertakings; or
	(b)	participate, directly or indirectly, in the formation of a company that, upon incorporation, will be a subsidiary; or
	(c)	enter into a transaction, contract or understanding whereby a company becomes or ceases to be a subsidiary; or
	(d)	acquire, dispose of, mortgage, or give security over, a significant asset, or give a charge over the whole or a significant part of its undertaking or assets.
(2)		A consent may be given subject to a condition and, where it is so given, the Territory owned corporation or subsidiary shall not carry out the activity that the consent refers to until the condition is satisfied.
(3)		Where a consent has been given in respect of a matter specified in paragraph (1) (a), (b) or (c), the Portfolio Minister shall lay before the Legislative Assembly within 15 sitting days of the giving of the consent a statement setting out details of the matter consented to.
(4)		A Territory owned corporation or a subsidiary shall not—
	(a)	dispose of any of its main undertakings; or
	(b)	enter into a transaction, contract or understanding whereby a company ceases to be a subsidiary;
unless the Legislative Assembly, by resolution, has approved the disposal, or the transaction, contract or understanding, as the case requires.
17 	Directions to corporations
(1)		Where—
	(a)	the voting shareholders of a Territory owned corporation request it or a subsidiary to perform, cease to perform or refrain from performing an activity or to perform an activity in a manner that is different from the manner in which the directors intend to perform the activity; and
	(b)	the directors of the company advise the voting shareholders that compliance with their request would not be in the best commercial interest of the company;
the voting shareholders may, by written direction, require the company to comply with the request.
(2)		The company shall comply with a lawful direction.
(3)		The directors of a company are not to be taken to be in breach of any duty under a law or the constitution of the company by reason only of their compliance with a lawful direction.
(4)		The Portfolio Minister shall lay before the Legislative Assembly—
	(a)	a copy of a direction; and
	(b)	a statement setting out the estimated net reasonable expense of complying with it;
within 15 sitting days of the issue of the direction.
(5)		The Territory shall reimburse the company for the net reasonable expense of complying with a direction.
(6)		In this section a reference to net reasonable expense is a reference to the difference between—
	(a)	the reasonable expense of complying with the direction; and
	(b)	the expense (if any) that the company would have incurred in respect of the activity that is the subject of the direction, if the direction had not issued.
(7)		An amount is not payable under subsection (5) unless it is agreed to by the Treasurer and the company or, failing agreement, is determined by the Chief Minister.
18 	Audit
(1)		A Territory owned corporation or a subsidiary, or the directors of such a corporation or of a subsidiary, shall not appoint a person other than the auditor-general as auditor of the company.
(2)		A company that has appointed the auditor-general as its auditor shall pay his or her reasonable fees and expenses.
(3)		In default of agreement the reasonable fees and expenses of the auditor-general shall be determined by the Treasurer.
19 	Preparation of statement of corporate intent
(1)		The directors of a Territory owned corporation shall submit to the voting shareholders a draft statement of corporate intent in relation to the corporation or, if the corporation has a subsidiary, in relation to the group, within 3 months after the corporation becomes a Territory owned corporation and at subsequent intervals not exceeding 12 months specified by the Treasurer in writing.
(2)		The directors shall—
	(a)	consider any comments made within 1 month of the submission of the draft statement by the voting shareholders; and
	(b)	consult with the voting shareholders on such of the comments as the directors do not agree with, with a view to reaching agreement; and 
	(c)	make such changes to the draft statement as are necessary to give effect to the comments agreed to and any agreement under paragraph (b); and
	(d)	give a statement of corporate intent to the voting shareholders within 2 months after the delivery of the draft.
(3)		The Portfolio Minister shall lay a statement of corporate intent before the Legislative Assembly within 15 sitting days after receiving it.
(4)		Before laying a statement before the Legislative Assembly the Portfolio Minister may delete from the statement any part dealing with commercially sensitive information but, if he or she does so, he or she shall lay before the Legislative Assembly, at the same time as he or she lays the statement, a further statement setting out the general nature of the material deleted and the reason for the deletion.
(5)		Except for the purpose of giving effect to an Act, a person shall not, before a statement is laid before the Legislative Assembly, publish or disclose information or material that is contained in the statement or in a draft of a proposed statement.
20 	Statement of corporate intent
(1)		A statement of corporate intent shall, in relation to the Territory owned corporation or the group of companies comprising a Territory owned corporation and any subsidiaries (as the case may be), contain the following in respect of the financial year it relates to and each of the 2 next following financial years:
	(a)	the commercial objectives of the group;
	(b)	a description of the main undertakings of the group;
	(c)	a description of the nature and scope of the activities to be undertaken;
	(d)	business and corporate strategies;
	(e)	the targets and performance measurements by which the performance of the corporation or group may be judged in relation to its stated objectives;
	(f)	any other information that the voting shareholders may have requested in writing the directors of the Territory owned corporation to include in the statement.
(2)		A statement of corporate intent shall relate to—
	(a)	in the case of the first statement of a Territory owned corporation—the financial year that ends on 30 June next following the day when the company becomes a Territory owned corporation; and
	(b)	in any other case—the financial year during which the statement is to be given to the voting shareholders.
21 	Modification of statement
(1)		The directors may, with the agreement of the voting shareholders, modify a statement of corporate intent.
(2)		A modification shall not be made unless written details of the proposed modification are furnished to the voting shareholders and they agree to the proposed modification.
(3)		Subsections 19 (2) and (5) apply in relation to a proposed modification as if it were a draft statement.
(4)		Subsections 19 (3), (4) and (5) apply in relation to a modification as if it were a statement.
(5)		A modification laid before the Legislative Assembly is incorporated with the statement that it modifies.
22 	Annual report
(1)		The directors of a Territory owned corporation shall furnish to the voting shareholders within the prescribed time after the end of each financial year of the corporation an annual report in accordance with this section on the operations of the corporation or, if the corporation has subsidiaries, the group in the financial year.
(2)		The report shall comprise—
	(a)	a report on the operations of the corporation or group; and
	(b)	such other information as has been requested by the voting shareholders in order to make an informed assessment on the operations; and
	(c)	such accounts, reports and financial statements as, under a law of the Commonwealth relating to corporations, are required to be made out in respect of the corporation and, in the case of a group, each subsidiary and the group as a whole; and
	(d)	a copy of the auditor-general’s report on the accounts, reports and financial statements referred to in paragraph (c), stating—
	(i)	whether they give a true and fair view of the profit or loss and state of affairs; and
	(ii)	whether they comply with applicable accounting standards; and
	(e)	an assessment of the performance of the corporation or group in relation to its objectives that includes, but is not limited to, an assessment of the performance in relation to the targets and performance measurements set out in the relevant statement of corporate intent; and
	(f)	particulars of the manner in which the corporation or group has complied with any directions under section 17 (whether given during the financial year or earlier) and of the cost of compliance.
(3)		Where a report, information or material required by this section is also required to be produced under a law of the Commonwealth dealing with the regulation of companies, it may be produced for the purposes of this section in the manner required by that law.
(4)		The Portfolio Minister shall lay a copy of a report under this section before the Legislative Assembly within 6 sitting days of receiving it.
(5)		In this section:
group, in relation to a Territory owned corporation, means the corporation and any subsidiary for the purpose of this section.
prescribed time means the time fixed under section 11 of the Annual Reports (Government Agencies) Act 1995 or, if that time has been extended in accordance with that Act, that time as extended.
subsidiary, in relation to a Territory owned corporation, means a body corporate that, under the Corporations Law, is a subsidiary of the corporation.
23 	Financial year
	A Territory owned corporation or a subsidiary shall not, without the consent of the voting shareholders, adopt or have a financial year other than a period of 12 months commencing on 1 July.

Part 4—Borrowing
24 	Borrowing from Territory
	The Treasurer may, on behalf of the Territory, lend money to a Territory owned corporation or a subsidiary on such terms and conditions as the Treasurer, by instrument, determines.
25 	Borrowing otherwise than from Territory
(1)		A Territory owned corporation or subsidiary may, within borrowing limits approved in writing by the Treasurer in respect of a financial year—
	(a)	borrow money, otherwise than from the Territory; or
	(b)	raise money, otherwise than by borrowing;
that is from time to time necessary for the exercise of its powers or the performance of its functions.
(2)		Without limiting the generality of subsection (1), the corporation or subsidiary may, under that subsection, borrow money, or raise money otherwise than by borrowing, by dealing in securities.
(3)		A borrowing of money, or a raising of money otherwise than by borrowing, may be made, in whole or in part, in a currency other than Australian currency.
(4)		For the purposes of this section—
	(a)	the issue by a corporation or subsidiary of an instrument acknowledging a debt in consideration of—
	(i)	the payment or deposit of money; or
	(ii)	the provision of credit;
otherwise than in relation to a transaction that is in the ordinary course of the day-to-day operations of the corporation or subsidiary, shall be deemed to be a raising, otherwise than by borrowing, of the amount of money equal to the amount of the money paid or deposited or the value of the credit provided, as the case may be; and
	(b)	the obtaining of credit by the corporation or subsidiary, otherwise than in relation to a transaction that is in the ordinary course of the day-to-day operations of the corporation or subsidiary, shall be deemed to be a raising, otherwise than by borrowing, of an amount of money equal to the value of the credit so obtained.
26 	Security
	A corporation or subsidiary may give security over the whole or any part of its assets for—
	(a)	the repayment of money borrowed under section 24 or paragraph 25 (1) (a) and the payment of interest on money so borrowed; or
	(b)	the payment of money (including any interest) that the corporation or subsidiary is liable to pay with respect to money raised by virtue of section 25.
27 	Borrowing not otherwise permitted
(1)		A Territory owned corporation or subsidiary shall not borrow, or raise money otherwise than by borrowing, except in accordance with this Part.
(2)		A contract is not illegal, void or unenforceable by reason only that this Part has not been complied with.
28 	Guarantee by Territory
	The Territory may guarantee, in such manner and on such conditions as the Treasurer thinks fit—
	(a)	the repayment of the principal of, and the payment of interest on, any sum that a Territory owned corporation or subsidiary borrows; and
	(b)	the performance by a Territory owned corporation or a subsidiary of a function or of an obligation under a contract.

Part 5—Taxation
28A 	Definitions for pt 5
	In this Part:
commissioner means the Commissioner for Australian Capital Territory Revenue.
income tax equivalent means an amount payable under paragraph 
30B (2) (a).
relevant rate means the rate specified in, or ascertained in accordance with, the Treasurer’s instructions for the purposes of the provision in which the expression occurs.
Treasurer’s instructions means instructions issued by the Treasurer in accordance with section 30.
wholesale sales tax equivalent means an amount payable under subsection 30C (2).
29 	Territory taxes
(1)		Tax is not payable by a Territory owned corporation or a subsidiary in relation to—
	(a)	an exempt activity; or
	(b)	an instrument or document prepared, made, executed or lodged to give effect to, or in connection with, an exempt activity; or
	(c)	a transaction entered into for the purpose of an exempt activity.
(2)		Where an activity, instrument, document or transaction is within a paragraph of subsection (1), the Treasurer shall certify in writing that the activity, instrument, document or transaction (as the case may be) is one to which subsection (1) applies.
(3)		The Treasurer may delegate to a public servant the function under subsection (2).
(4)		A certificate under this section is evidence of the matters stated in the certificate.

(5)		In this section:
exempt activity means—
	(a)	the incorporation of a relevant company; or
	(b)	the acquisition of shares in a relevant company; or
	(c)	the issue or transfer of shares in a relevant company; or
	(d)	the transfer of assets from the Territory or an authority of the Territory to a relevant company; or
	(e)	the assumption of responsibility by a relevant company for a liability of the Territory or an authority of the Territory;  or
	(f)	an activity or thing necessary to give effect to, or incidental to, another exempt activity.
relevant company means—
	(a)	a Territory owned corporation; or
	(b)	a subsidiary; or
	(c)	a company that the Portfolio Minister certifies in writing that it is intended will become a Territory owned corporation or subsidiary.
tax includes a duty, fee, levy or charge payable under an Act.
30 	Treasurer’s instructions
(1)		The Treasurer may issue instructions in writing in respect of guidelines, principles, practices and procedures to be observed by a Territory owned corporation in relation to—
	(a)	the determination, calculation and payment of income tax equivalents and wholesale sales tax equivalents; and
	(b)	any other matter connected with income tax equivalents or wholesale sales tax equivalents.
(2)		Treasurer’s instructions may be issued so as to—
	(a)	apply at all times, at a specified time or for a specified period; or
	(b)	require a matter affected by them to be—
	(i)	in accordance with a specified standard or specified requirement; or
	(ii)	approved by a specified person or specified class of persons; or
	(c)	specify that a specified person or specified class of persons is to determine a specified matter; or
	(d)	exempt from the provisions of the Treasurer’s instructions, whether on specified conditions or unconditionally and either wholly or to such extent as is specified—
	(i)	a specified person or a specified class of persons; or
	(ii)	a specified matter affected by them or a specified class of such matters; or
	(iii)	a specified thing or a specified class of things; or
	(iv)	a specified act or a specified class of acts.
(3)		A Treasurer’s instruction that is inconsistent with this Act or any other Act is invalid to the extent of the inconsistency.
(4)		A Treasurer’s instruction to be complied with by a Territory owned corporation does not have any effect until a copy of it is provided to—
	(a)	in the case of a subsidiary—the subsidiary or the corporation of which it is a subsidiary; or
	(b)	in any other case—the corporation.
(5)		In this section, unless the contrary intention appears, a reference to a Territory owned corporation shall be taken to include a reference to a subsidiary of a Territory owned corporation.
30A 	Compliance with Treasurer’s instructions
	A Territory owned corporation or subsidiary shall ensure that it complies with any Treasurer’s instruction that relates to it.
30B 	Income tax equivalents
(1)		This section applies to a Territory owned corporation or subsidiary that, by reason only of being owned by or on behalf of the Territory, is not required to pay tax under the Commonwealth Tax Act.
(2)		Subject to this Act and the Treasurer’s instructions—
	(a)	a company to which this section applies shall pay to the Territory an amount equivalent to the tax that it would be liable to pay under the Commonwealth Tax Act if it were not such a company; and
	(b)	the Commonwealth Tax Act applies in relation to the calculation, determination and payment of, and all other matters relevant to, an income tax equivalent as if a reference to the Commonwealth Commissioner of Taxation were a reference to the commissioner or his or her delegate.
(3)		In addition to any other rulings that the commissioner may make by virtue of the application of paragraph (2) (b), the commissioner may, in respect of an income tax equivalent or for the purpose of determining whether an income tax equivalent is payable, specify whether an aspect of the Commonwealth Tax Act can be applied in relation to the calculation, determination and payment of an income tax equivalent payable by a particular Territory owned corporation or subsidiary or by Territory owned corporations and subsidiaries generally and, if it can be applied, how it is to be applied.
(4)		In this section:
Commonwealth Tax Act means the Income Tax Assessment Act 1936 of the Commonwealth together with any other law of the Commonwealth relating to income tax.
30C 	Wholesale sales tax equivalents
(1)		This section applies to a Territory owned corporation or subsidiary that, by reason only of being owned by or on behalf of the Territory, is not required to pay tax under the laws of the Commonwealth relating to goods and services.
(2)		Subject to this Act and the Treasurer’s instructions, a corporation or subsidiary to which this section applies shall pay to the Territory an amount calculated in accordance with the Treasurer’s instructions to be equivalent to the value of the benefit gained by the corporation or subsidiary because of any exemption from sales tax that would otherwise have been payable under the laws of the Commonwealth relating to goods and services.
30D 	Payment of tax equivalents
	The payment of an income tax equivalent or a wholesale sales tax equivalent shall be at the times and in the manner specified in the Treasurer’s instructions.
30E 	Penalty for late payment
(1)		If a Territory owned corporation or subsidiary does not pay an amount, or part of an amount, payable as an income tax equivalent or a wholesale sales tax equivalent by the date on which it is due, interest is due and payable on the amount unpaid at the relevant rate from that day to and including the day on which it is paid.
(2)		A Territory owned corporation or subsidiary is not liable to pay interest under subsection (1) if the commissioner so determines.
30F 	Variation of tax equivalents
(1)		Subject to the Treasurer’s instructions, the commissioner may vary an original tax equivalent if satisfied that it has been calculated incorrectly.
(2)		The commissioner shall give the relevant corporation or subsidiary notice of a variation under subsection (1).
(3)		If a Territory owned corporation or subsidiary has paid the whole or part of an original tax equivalent and that whole or part is greater than the varied tax equivalent—
	(a)	the difference between the amount so paid and the varied tax equivalent accrues interest at the relevant rate from the date of the payment of the whole or part to and including the date of repayment of an amount equivalent to that difference; and
	(b)	the commissioner shall pay to the corporation or subsidiary an amount equivalent to the difference between the whole or part paid and the varied tax equivalent and any interest accrued in accordance with paragraph (a).
(4)		If an original tax equivalent is less than a varied tax equivalent—
	(a)	the difference accrues interest at the relevant rate from the date on which the original tax equivalent was due to be paid to and including the date of repayment of an amount equal to the difference; and
	(b)	the relevant Territory owned corporation shall pay to the commissioner an amount equal to the difference between the original tax equivalent and the varied tax equivalent and any interest accrued in accordance with paragraph (a) in the manner and no later than at the times determined by the commissioner.
(5)		In this section:
original tax equivalent means an income tax equivalent calculated under paragraph 30B (2) (a) or a wholesale sales tax equivalent  calculated under subsection 30C (2).
varied tax equivalent means an income tax equivalent or a wholesale sales tax equivalent varied under subsection (1).
30G 	Remission, refund and waivers
	Where the commissioner is satisfied that it is fair and reasonable that all or part of any amount paid or payable under this Part should be remitted, refunded or waived, the commissioner may remit or refund the relevant amount to the relevant corporation or subsidiary or may waive payment.
30H 	Rulings
	Subject to this Act and the Treasurer’s instructions, the commissioner may, on receiving an application in accordance with the  Treasurer’s instructions, make a ruling in respect of the calculation, determination or payment of an income tax equivalent or a wholesale sales tax equivalent payable by a particular Territory owned corporation or subsidiary or by Territory owned corporations and subsidiaries generally, as required by the application.
30J 	Objections
(1)		A Territory owned corporation or subsidiary may, in accordance with the Treasurer’s instructions, lodge with the commissioner an objection to an assessment, a determination or a ruling that relates to it.
(2)		The commissioner shall determine an objection in accordance with the Treasurer’s instructions.
30K 	Appeals
(1)		A Territory owned corporation or subsidiary may, in accordance with the Treasurer’s instructions, apply to the Treasurer for review of the determination of an objection by the commissioner within 90 days after the day on which the corporation or subsidiary is notified of the determination.
(2)		The Treasurer may inform himself or herself on any matter relevant to a review in such manner as he or she considers appropriate.
(3)		On review, the Treasurer shall—
	(a)	confirm the commissioner’s determination of the objection; or
	(b)	uphold the objection and amend or revoke the determination, calculation or ruling to which the objection relates in terms no less favourable to the applicant than those of the original decision;
and shall, in any case, notify the applicant of his or her decision as soon as practicable after making the decision.
(4)		The decision of the Treasurer under subsection (3) is final.
(5)		Subject to this section, a review of the determination of an objection shall be instituted, considered and determined in accordance with the Treasurer’s instructions.
30L 	Effect of pending objection or review
	The fact that the consideration of an objection is pending does not affect the decision to which the objection relates, so that income tax equivalents and wholesale sales tax equivalents may be assessed and are payable as if no objection had been made.
31 	Borrowing levy
(1)		A Territory owned corporation or subsidiary that borrows moneys, whether from the Territory or otherwise, shall pay to the Territory such amount, or an amount calculated in such a manner, as the Treasurer determines in writing.
(2)		An amount payable under this section shall be paid in such a manner, or by such instalments, as the Treasurer determines in writing.
(3)		A determination under this section may be made in relation to a borrowing contract or to a class of borrowing contracts.

Part 6—Miscellaneous
32 	Profits available for payment of dividends
(1)		A Territory owned corporation or subsidiary shall pay a dividend only out of profits lawfully available for the purpose.
(2)		For the purpose of calculating the profits that, in respect of a financial year, are available for the payment of a dividend, the directors shall deduct from the profits of the company for that year any amount that, under another Act, is payable out of those profits.
33 	Voting equality
	A Territory owned corporation shall not issue shares to a voting shareholder if the issue would result in a voting shareholder being able to cast a greater number of votes at a meeting than another voting shareholder.
33A 	Benefits retained and preserved
(1)		This section applies to a person employed by, or engaged as a member of the staff of, a Territory owned corporation established on or after 1 January 1992 who, immediately before being employed or engaged by the corporation, was appointed or employed under the Public Service Act 1999 (Cwlth) or the Public Sector Management Act 1994.
(2)		A person to whom this section applies retains the benefits (if any) in respect of—
	(a)	long service leave; and
	(b)	maternity leave; and
	(c)	parental leave; and
	(d)	recreation leave; and
	(e)	leave of absence on account of illness;
that had accrued to that person immediately before being employed or engaged by the relevant Territory owned corporation.
(3)		A person to whom this section applies shall, on or after 1 January 1992, be entitled to the benefits in respect of the matters referred to in paragraphs (2) (a) to (e) (inclusive) that are no less favourable to that person than the benefits to which that person would have been entitled from time to time in respect of those matters if he or she had continued to be appointed or employed under the Act under which he or she was appointed or employed immediately before being employed by, or engaged as a member of the staff of, the Territory owned corporation.
33B 	Affirmative action
(1)		The provisions of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cwlth) apply, by force of this section, to a Territory owned corporation or a subsidiary, as if the corporation or the subsidiary were not an authority within the meaning of that Act.
(2)		The provisions referred to in subsection (1) apply with such modifications (if any) as are  prescribed.
34 	Regulations
	The Executive may make regulations, not inconsistent with this Act, prescribing matters—
	(a)	required or permitted by this Act to be prescribed; or
	(b)	necessary or convenient to be prescribed for carrying out or giving effect to this Act.

	SCHEDULE 1	(See s 6)
TERRITORY OWNED CORPORATIONS
ACTEW Corporation Limited
ACTTAB Limited
Totalcare Industries Limited

	SCHEDULE 2	(See s 11)
PROVISIONS TO BE INCLUDED IN THE CONSTITUTION OF A TERRITORY OWNED CORPORATION OR A SUBSIDIARY
Provisions to the effect of the following provisions are to be included in the constitution of a company that is a Territory owned corporation or a subsidiary:
1.  The constitution may not be altered in a way that is inconsistent with the provisions of this Schedule unless and until a resolution approving the alteration or addition has been passed by the Legislative Assembly.
2.  The provisions of the Territory Owned Corporations Act 1990 prevail over any inconsistent provisions of the constitution that have not been approved by the Legislative Assembly.
3.  The constitution shall state the objects of the company.

	SCHEDULE 3	(See s 11)
FURTHER PROVISIONS TO BE INCLUDED IN THE CONSTITUTION OF A TERRITORY OWNED CORPORATION OR A SUBSIDIARY
Part 1

Provisions to the effect of the following provisions are to be included in the constitution of a company that is a Territory owned corporation or a subsidiary:
1.  A shareholder who is a Minister ceases to be eligible to hold shares in the company on ceasing to be a Minister, and may thereafter exercise no right as a shareholder (except to transfer his or her shares as directed by the Chief Minister).
3.  All decisions relating to the operation of a company are to be made by or under the authority of the directors in accordance with the statement of corporate intent of the company or, if the company is a subsidiary, of the Territory owned corporation that is the ultimate holding company.
4.  The company, its directors and its voting shareholders shall comply with the Territory Owned Corporations Act 1990.
4A.  Where—
	(a)	an appointment referred to in subsection 12 (3) of the Territory Owned Corporations Act 1990 is made; and
	(b)	the voting shareholders have not complied with subsection 12 (2) of that Act; 
the director appointed holds office—
	(c)	until the expiry of a period of 90 days from the day of appointment; or
	(d)	until he or she ceases to hold office for any other reason; 
whichever first occurs.
5.  The directors shall declare such dividend as is agreed to between them and the voting shareholders or, failing agreement, as the voting shareholders direct in writing.
6.  The company shall ensure that the constitutions of its subsidiaries at all times contain provisions to the effect of those required by this Schedule.
7.  The company shall, to the maximum extent practicable, ensure that every subsidiary complies with the constitution of the subsidiary and with the requirements of the Territory Owned Corporations Act 1990.
Part 2
Provisions to the effect of the following provisions are to be included in the constitution of a company that is a Territory owned corporation:
1.  The issued capital of a company shall consist of 2 shares that entitle the holders to vote at a general meeting and such other shares as the company may issue.
1A.  The company may issue a non-voting share or a right relating to a non-voting share only if the Treasurer has agreed in writing to the issue.
2.  Only a Minister may hold a voting share in the capital of the company.
3.  The directors of the company are to be appointed by the voting shareholders.
4.  Only the voting shareholders may vote at a general meeting of the company.
5.  The quorum at a general meeting shall consist of 2 voting shareholders present in person or by proxy.
  6.  The company must register a transfer of a voting share or a right relating to a voting share that is signed by the Chief Minister on behalf of the transferor and is accompanied by a declaration by the Chief Minister that the signature of the holder of the share or right cannot readily be obtained.
  7.  The company must register a transfer of a non-voting share or a right relating to a non-voting share that is signed by the Treasurer on behalf of the transferor and is accompanied by a declaration by the Treasurer that the signature of the holder of the share or right cannot readily be obtained.
  8.  The company may only register a transfer of a share or a right if the transfer has been made under a direction under section 13 of the Territory Owned Corporations Act 1990 or under a provision required to be included in the constitution of the company by clause 6 or 7.

Part 3
Provisions to the effect of the following provisions are to be included in the constitution of a company that is a subsidiary:
1.  A person shall not be appointed as director unless the voting shareholders consent to the appointment.
2.  Shares in the company may not be issued or transferred unless the voting shareholders have consented in writing.

	SCHEDULE 4	(See s 4)
MODIFICATIONS IN RELATION TO ACTEW CORPORATION LIMITED

1 	Definitions for sch 4
	In this Schedule:
authority means the former Australian Capital Territory Electricity and Water Authority established by the Electricity and Water Act 1988.
company means ACTEW Corporation Limited.
2 	Substitution of section 7
	Section 7 is to be taken to be replaced by the following section:
‘7	Principal objectives of company
‘(1)	The principal objectives of the company are to—
	(a)	operate at least as efficiently as any comparable business; and
	(b)	maximise the sustainable return to the Territory on its investment in the company in accordance with the performance targets contained in the latest statement of corporate intent of the company; and
	(c)	exhibit a sense of social responsibility by having regard to the interests of the community in which it operates; and
	(d)	where its activities affect the environment—conduct its operations in compliance with the principles of ecologically sustainable development.
‘(2)	For the purposes of paragraph (1) (d), ecologically sustainable development is to be taken to require the effective integration of economic and environmental considerations in decision-making processes and to be achievable through implementation of the following principles:
	(a)	the precautionary principle, namely, that if there is a threat of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
	(b)	the inter-generational equity principle, namely, that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
	(c)	conservation of biological diversity and ecological integrity;
	(d)	improved valuation and pricing of environmental resources.
‘(3)	The principal objectives of the company are of equal importance.’.
3 	Operation of section 14
	Section 14 applies as if subsection (1) were omitted and the following subsections substituted:
‘(1)	Subject to subsection (1A), a Territory owned corporation or a subsidiary shall not enter into a specified transaction if, as a result of the transaction, a company would or could become a partially owned subsidiary of the Territory owned corporation or subsidiary.
‘(1A)	Subsection (1) does not apply to the company.’.
4 	Operation of section 16
	Section 16 applies as if the following subsection were inserted:
‘(5)  In this section:
subsidiary, in relation to a Territory owned corporation, means a body corporate that under the Corporations Law is a subsidiary of the corporation.’.
5 	Operation of section 30
(1) 	In this section:
acquired, in relation to an asset, means an acquisition of the asset for the purposes of Part IIIA of the Commonwealth Act.
asset has the same meaning as in Part IIIA of the Commonwealth Act.
Commonwealth Act means the Income Tax Assessment Act 1936 (Cwlth).
cost base has the meaning given by section 160ZH of the Commonwealth Act.
disposed of, in relation to an asset, means a disposal of the asset for the purposes of Part IIIA of the Commonwealth Act.
indexed cost base has the meaning given by section 160ZH of the Commonwealth Act.
reduced cost base has the meaning given by section 160ZH of the Commonwealth Act.
vested means vested under section 4 of the Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995.
(2)		For the purposes of section 30, an asset vested in the company which was acquired by the authority before 20 September 1985 shall be taken to have been acquired by the company before that date.
(3)		For the purposes of section 30, where an asset vested in the company—
	(a)	was acquired by the authority on or after 20 September 1985; and 
	(b)	is disposed of by the company;
the asset shall be taken to have been acquired by the company at a cost base to the company equal to the cost base that would have been the cost base, the indexed cost base or the reduced cost base, as the case may be, to the authority of that asset if the asset had been disposed of by the authority at the time it was disposed of by the company.

	SCHEDULE 5	(See s 4 (2))
MODIFICATIONS IN RELATION TO ACTTAB LIMITED
1 	Definitions for sch 5
	In this Schedule:
board means the former Australian Capital Territory Totalizator Administration Board established by the Betting (Totalizator Administration) Act 1964.
company means ACTTAB Limited.

2	Operation of section 14
	Section 14 applies as if subsection (1) were omitted and the following subsections substituted:
‘(1)	Subject to subsection (1A), a Territory owned corporation or a subsidiary shall not enter into a specified transaction if, as a result of the transaction, a company would or could become a partially owned subsidiary of the Territory owned corporation or subsidiary.
‘(1A)	Subsection (1) does not apply to the company.’.
3 	Operation of section 16
	Section 16 applies as if the following subsection were inserted:
‘(4)	In this section:
subsidiary, in relation to a Territory owned corporation, means a body corporate that under the Corporations Law is a subsidiary of the corporation.’.
4 	Operation of section 30
(1) 	In this section:
acquired, in relation to an asset, means an acquisition of the asset for the purposes of Part IIIA of the Commonwealth Act.
asset has the same meaning as in Part IIIA of the Commonwealth Act.
Commonwealth Act means the Income Tax Assessment Act 1936 (Cwlth).
cost base has the meaning given by section 160ZH of the Commonwealth Act.
disposed of, in relation to an asset, means a disposal of the asset for the purposes of Part IIIA of the Commonwealth Act.
indexed cost base has the meaning given by section 160ZH of the Commonwealth Act.
reduced cost base has the meaning given by section 160ZH of the Commonwealth Act.
vested means vested under section 5 of the Betting (Corporatisation)  (Consequential Provisions) Act 1996.
(2)		For the purposes of section 30, an asset vested in the company which was acquired by the board before 20 September 1985 shall be taken to have been acquired by the company before that date.
(3)		For the purposes of section 30, where an asset vested in the company—
	(a)	was acquired by the board on or after 20 September 1985; and 
	(b)	is disposed of by the company;
the asset shall be taken to have been acquired by the company at a cost base to the company equal to the cost base that would have been the cost base, the indexed cost base or the reduced cost base, as the case may be, to the board of that asset if the asset had been disposed of by the board at the time it was disposed of by the company.
5 	Exclusion of section 33A
	Section 33A does not apply in relation to the company or the staff of the company.

ENDNOTES
1	About this republication
This is a republication of the Territory Owned Corporations Act 1990 as in force on 
21 December 2000.  It includes all amendments made to the Act up to Act 2000 No 80.
Amending and modifying laws are annotated in the table of legislation and table of amendments.  However, any modifications are not included in the republished Act but are set out in the endnotes.
The Parliamentary Counsel’s Office currently prepares 2 kinds of republications of ACT laws:  authorised printed republications to which the Legislation (Republication) Act 1996 applies and unauthorised electronic republications.  The status of a republication appears on its cover and is indicated by its republication number.
A republication number without a letter (eg 1, 2, 3 etc) indicates that the republication is an authorised printed republication.  A number with a letter (eg 1A, 1B, 1C etc) indicates that the republication is an unauthorised electronic republication.
Section 13 of the Legislation (Republication) Act 1996 authorises the Parliamentary Counsel, in preparing a law for republication, to make textual amendments of a formal nature which the Parliamentary Counsel considers desirable in accordance with current legislative drafting practice.  The amendments do not effect a substantive change in the law.
In preparing this republication, amendments have not been made under section 13.
Not all amendments made under section 13 are annotated in the table of amendments.  Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
2	Abbreviation key
Key to abbreviations in tables

am = amended
amdt = amendment
ch = chapter
cl = clause
def = definition
dict = dictionary
div = division
exp = expires/expired
Gaz = Gazette
hdg = heading
ins = inserted/added
LR = Legislation (Republication) Act 1996
mod = modified
No = number
notfd = notified
o = order
om = omitted/repealed
orig = original
p = page
par = paragraph
pres = present
prev = previous
(prev...) = previously
prov = provision
pt = part
r = rule/subrule
reg = regulation/subregulation
renum = renumbered
reloc = relocated
R[X] = Republication No
s = section/subsection
sch = schedule
sdiv = subdivision
sub = substituted
SL  = Subordinate Law
sp = spent
*  = SL unless otherwise stated
† = Act or Ordinance unless otherwise stated

3	Table of legislation
Act†	Year and number†	Gazette
notification	Commencement	Transitional provisions	

Territory Owned Corporations Act 1990	1990 No 53	21 Dec 1990	ss 1 and 2: 21 Dec 1990
remainder: 1 Jan 1991		
Territory Owned Corporations (Amendment) Act 1991	1991 No 87	20 Dec 1991	ss 1-3:  20 Dec 1991
remainder: 1 Jan 1992	ss 4 and 
7-9	
Statute Law Revision (Miscellaneous Provisions) Act 1993	1993 No 1	1 Mar 1993	1 Mar 1993	—	
Betting (Totalizator Administration)  (Amendment) Act 1993	1993 No 36	29 June 1993	ss 1 and 2:  29 June 1993
ss 7 and 8:  1 Aug 1993 (see Gaz 1993 No S111 p 2)
remainder:  1 July 1993 (see Gaz 1993 No S111 p 2)	—	
Acts Revision (Position of Crown) Act 1993	1993 No 44	27 Aug 1993	27 Aug 1993 (see 
s 2)	—	
Public Sector Management (Consequential and Transitional Provisions) Act 1994	1994 No 38	30 June 1994	ss 1 and 2:  30 June 1994
remainder:  1 July 1994 (see Gaz 1994 No S142 p 2)	ss 3, 5-12, 15 and 19	
Electricity and Water (Corporatisation) (Consequential Amendments) Act 1995	1995 No 7	28 June 1995	1 July 1995 (see 
s 2)	—	
Financial Management and Audit (Consequential and Transitional Provisions) Act 1996	1996 No 26	1 July 1996	1 July 1996	—	
Betting (Corporatisation) (Consequential Amendments) Act 1996	1996 No 33	1 July 1996	1 July 1996 (see 
s 2)	—	
Territory Owned Corporations (Amendment) Act 1997	1997 No 36	1 July 1997	1 July 1997	s 6	
Territory Owned Corporations (Amendment) Act (No 2) 1997	1997 No 40	1 Sept 1997	ss 1-3:  1 Sept 1997
remainder:  1 Oct 1997 (see Gaz 1997 No S341)	—	
Territory Owned Corporations (Amendment) Act (No 3) 1997	1997 No 73	25 Nov 1997	25 Nov 1997	—	
Territory Owned Corporations (Amendment) Act (No 4) 1997	1997 No 118	24 Dec 1997	24 Dec 1997	—	
Territory Owned Corporations (Amendment) Act 1998	1998 No 20	10 July 1998	10 July 1998	—	
Territory Owned Corporations (Amendment) Act 1999	1999 No 10	23 Mar 1999	ss 1-3:  23 Mar 1999
remainder :  23 June 1999 (see s 2 (2))	—	
Territory Owned Corporations Amendment Act (No 2) 1999	1999 No 72	15 Dec 1999	ss 1-3:  15 Dec 1999
remainder:  5 Jan 2000 (see 
s 2 (2) and Gaz 2000 No S1 p 2)	—	
Territory Owned Corporations Amendment Act 2000	2000 No 42	4 Sept 2000	4 Sept 2000	—	
Statute Law Amendment Act 2000
	2000 No 80	21 Dec 2000	21 Dec 2000	—	
4	Table of amendments

Provision	How affected†
1

s 2	exp R6 (LR s 15 (1) (o) (iv))
s 3	am 1993 No 1; 1995 No 7; 1996 No 26; 1999 No 72 s 4
s 4	sub 1995 No 7
	am 1996 No 33
s 5	om 1993 No 44
s 9, 10	am 1999 No 72 s 9 sch
s 11	sub 1999 No 72 s 5
s 12	am 1999 No 10 s 4; 1999 No 72 s 9 sch
s 13	am 1998 No 20
	sub 1999 No 72 s 6
s 14	am 1993 No 1; 1995 No 7
s 16	am 1998 No 20
s 17	am 1999 No 72 s 9 sch
s 19	am 1999 No 72 s 7
s 22	am 1993 No 1; 1995 No 7; 1997 No 118
s 24	am 1997 No 73
s 28A	ins 1997 No 36
s 30	sub 1997 No 36
ss 30A-30L	ins 1997 No 36
s 32	am 1993 No 1
s 33A	ins 1991 No 87
	am 1994 No 38
s 33B	ins 1991 No 87
sch 1	am 1991 No 87; 1993 No 36; 1995 No 7; 1996 No 33; 1997 No 40; 2000 No 42 s 4
sch 2 hdg	am 1999 No 72 s 9 sch
sch 2	am 1999 No 72 s 9 sch

sch 3 hdg	am 1999 No 72 s 9 sch
sch 3	am 1999 No 10 s 5; 1999 No 72 ss 8, 9 sch
sch 4	ins 1995 No 7
	am 2000 No 80 amdt 3.25
sch 5	ins 1996 No 33

5	Table of earlier republications
Amendments to	Cut-off date	Republication number	
Act 1991 No 87	29 February 1992	(1)	
Act 1993 No 44	31 August 1993	(2)	
Act 1996 No 33	30 September 1996	(3)	
Act 1997 No 36	1 July 1997	(4)	
Act 1998 No 20	10 July 1998	(5)	
Act 2000 No 42	4 September 2000	6	
Act 2000 No 42	4 September 2000	6A	

©  Australian Capital Territory 2001

The Copyright Act 1968 (Cwlth) permits certain reproduction and publication of this legislation.  For reproduction or publication beyond that permitted by the Act, written permission must be sought from the Government Printer, c/o Information Management and Libraries, Department of Urban Services, ACT Government, GPO Box 158, Canberra City ACT 2601.