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NOTES ON CLAUSES
Part 1 – Preliminary matters
Clause 1. Short title
The clause provides that the Act may be cited as the Power Generation Corporation Act 2014.
Clause 2. Commencement
The provisions of the Legislation commence on the day fixed by the Administrator by Gazette notice.
Clause 3. Definitions
This clause defines terms used in this Bill.
Sub-clause (1) clarifies that the CEO means the person appointed under section 16 of the Government Owned Corporations Act to be the chief executive officer of GenCorp.
Sub-clause (2) makes clear that the abbreviation GenCorp is short for the Power Generation Corporation established by section 5 of the Act.
Clause 4. Act binds Crown
This clause provides that the Bill will bind the Crown in each of its capacities.
PART 2 – POWER GENERATION CORPORATION
Clause 5. GenCorp established
This clause legally establishes the Power Generation Corporation.
Clause 6. Government owned corporation
This clause designates the Power Generation Corporation as a Government owned corporation, meaning that the provisions of the Government Owned Corporations Act will apply to the Power Generation Corporation.
Clause 7. Status as Agency
Sub-clause (1) - The purpose of this clause is to specify that the Corporation will be an Agency for the purposes of the Public Sector Employment and Management Act (PSEMA) , but for no other Act. This will have the effect of applying the provisions of PSEMA to the Corporation, subject to the amendments set out in clause 8 below.
Sub-clause (2) – This confirms that , since the Corporation will be an Agency only for the purposes of PSEMA, an Administrative Arrangement Order cannot nominate the Corporation as an Agency.
Clause 8. Matters relating to the Public Sector Employment and Management Act
Sub-clause (1) nominates the CEO of the GenCorp as the CEO for the purposes of PSEMA.
Sub-clause (2) amends the operation of the PSEMA as it applies to the Corporation. This is because certain provisions of PSEMA relate to the Ministerial oversight of Agencies. For Government owned corporations, there is a separate scheme of Ministerial oversight provided by the Government Owned Corporations Act (GOC Act). To ensure a consistent approach to Ministerial oversight, where PSEMA provisions are inconsistent with the provisions of the GOC Act, then they are either disapplied or amended as follows:
- Section 22 of PSEMA will not apply to the Corporation. Section 22 of PSEMA provides a regime for directions to be given by the Minister. There is an alternative regime for Ministerial direction under the GOC Act which is more appropriate to a commercial corporation.
- Section 23 of PSEMA will not apply to the Corporation. Section 23 of PSEMA provides that the CEO is responsible to the Minister. The GOC Act sets out the Ministerial accountability framework that applies to the Corporation.
- Section 24(1) of PSEMA would be omitted with an alternative inserted. Section 24(1) of PSEMA sets out that the functions of the CEO are to manage and provide strategic leadership of the Agency. This is not consistent with section 15 of GOC Act, which provides that the board of the Corporation, not the CEO, is responsible for the operation of the Corporation. The revised clause makes clear that the functions of the CEO under PSEMA are to employ and manage employees in accordance with that Act for the purpose of enabling the Corporation to perform its functions.
- Sections 24(2) and (3) of PSEMA are disapplied. These provisions set out the functions of an agency CEO. These functions are not consistent with the provisions of the GOC Act or with the commercial focus of the CEO of Government owned corporation. The functions under PSEMA include, for instance, to be “responsive to government policies and priorities” and “uphold the public sector principles”. The Corporation, in contrast, is established as a commercial enterprise with specific functions under its own act and obligations under the GOC Act to operate commercially. The GOC Act (s.29 and s.30) then provides a specific regime for the Minister to direct the Corporation to comply with specific policies or to act in the public interest. Accordingly, these provisions are disapplied. However, for the PSEMA framework to be effective, it is appropriate for the CEO to be required to uphold the human resource management principle and performance and conduct principle. Accordingly, this requirement is retained.
- Sections 24(3)(b) and 24(3)(h) of PSEMA are disapplied. Section 24(3)(b) requires CEOs to meet objectives set by the Minister. For a GOC, this is set through the Statement of Corporate Intent (as set out in ss39-41 of the GOC Act). Section 24(3)(h) provides that the CEO should be responsible for “devising and implementing financial and management plans for the Agency and monitoring the Agency's financial and administrative performance”. For GOCs, Part 3 Division 4 and Part 4 of the GOC act provides a separate and specific accountability regime that is not consistent with the framework set out in Section 24(3)(h) of PSEMA.
- Section 24(4) of PSEMA – is modified to remove references to “any other Act”. Section 24(4) of PSEMA provides that functions can be conferred on the CEO by other Acts. As the CEO of the Corporation is an Agency CEO only for the purposes of PSEMA, it is not relevant for functions to be conferred by other Acts. Apart from PSEMA, the functions of the CEO are set out in the GOC Act.
- Section 27 of PSEMA is disapplied – This section provides a regime for delegation by the CEO. Section 16 of the GOC Act provides the regime for appointment CEOs to GOCs including the process of delegation. This should prevail over the PSEMA Act, so section 27 of PSEMA is disapplied.
- Section 28 of PSEMA is disapplied. This section provides a regime for CEOs reporting performance. This is not consistent with the reporting framework imposed on GOCs by virtue of Part 4 Division 2 of the GOC Act.
Part 3 – Functions of GenCorp
Clause 9. Functions
This clause sets out a range of functions that are consistent with the objective of the corporation to be a generator of electricity. It includes the generation, acquisition and supply of electricity. It also includes a range of allied functions including: acquiring, transporting and supplying energy from which electricity may be generated; supplying or acquiring technologies to improve the efficiency of energy generation; to provide services necessary for security or reliability of the power system; to undertake any works necessary to perform their functions; and to develop products, technology or intellectual property that relates to its functions.
Clause 10. Restriction on retail supply of electricity
Even though one of the functions of GenCorp is to sell electricity, this section prevents the Corporation from being a retailer of electricity for a period of at least five years from the commencement of operations.
The purpose of this restriction is to ensure that the structural separation of the Power and Water Corporation is effective. This prohibition period will ensure that the Generation Corporation cannot abuse its dominance in the electricity generation market by preventing the Generation Corporation re-integrating downstream supply of electricity.
Sub-clause (2) provides that the restriction will last for an initial period of five years and can be extended by the Minister by a notice in the Gazette.
Sub-clause (3) gives the Minister power to authorise GenCorp to supply electricity during the prohibition period to a specified person or class of persons.
Clause 11. Review of restriction on retail sale
This clause provides for a mandatory review of the restriction on retail sale before the expiry of four years.
The purpose of the review is to determine the effectiveness of the prohibition on retailing on the encouragement of competition in the power generation, power retail and wholesale electricity markets in the Territory. This review can be used by the Minister in deciding whether to extend the prohibition.
Clause 12. Extension of retail restriction period
This clause sets out the regime that must be followed by the Minister if they wish to extend the prohibition period.
Sub-clause (1) provides that the period can be extended by up to a further five years, by notice in the Gazette.
Sub-clause (2) requires that the Minister first conduct the review mentioned in Clause 11 before they can extend the period, and that the extension must be gazetted before the first prohibition period ends.
Sub-clauses (3)-(5) require that any declaration to extend the prohibition period must be promptly tabled in the Assembly.
PART 4 – Miscellaneous matters
Clause 13. Exemption from local government rates etc.
As with all Government owned corporations, the clause provides for an exemption from local government rates. This does not confer any advantage on the Corporation, because the Northern Territory levies the equivalent of local government rates through the Northern Territory Tax Equivalent Regime.
Clause 14. Protection of employees from personal liability
This clause provides the new Corporation’s employees with protection from personal liability for acts done in good faith in the course of their operations. This is the same protection currently afforded employees of the Power and Water Corporation.
Clause 15. Authentication of documents
This clause provides a clarification that documents requiring authentication by GenCorp are sufficiently authenticated without the seal of GenCorp if signed by a person authorised to do so by GenCorp's board.
Clause 16. Money due to Corporation
This clause provides that any money due to the Corporation may be recovered by the Corporation as a debt. The reason for this clause is that historically there is a distinction between an action for damages and an action for debt. The advantages of taking an action for a debt are:
- The action is more aligned to an action for detention of money rather than breach of contract and so concepts like mitigation of loss do not apply;
- There is no requirement for a plaintiff to prove loss or damage;
- In the defence of prior payment the onus of proof is on the defendant.
Clause 17. Regulations
This clause provides the Administrator with a regulation making power.
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