Electricity Corporation (Act Amendment) Regulations 2002 (WA)
1 November 2002 GOVERNMENT GAZETTE, WA 5375 TF301*
Electricity Corporation Act 1994
Electricity Corporation (Act Amendment)
Regulations 2002
Made by the Governor in Executive Council under section 88 of the Act on the recommendation of the Minister.
"financial year" has the meaning given by clause 23(1);
1. Citation
These regulations may be cited as the Electricity Corporation
(Act Amendment) Regulations 2002.2. Schedule 3 to the Act replaced
Schedule 3 to the Electricity Corporation Act 1994* is repealed and the following Schedule is inserted instead —
44
Schedule 3 — Financial administration and audit
[section 88(1)]
Division 1 — Preliminary
1. Interpretation
(1) In this Schedule, unless the contrary intention appears —
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"regulations" means regulations made under the Corporations Act.
(2) In this Schedule, unless the contrary intention appears,
expressions (including the expressions "accounting
standard", "company" and "financial records") have the
respective meanings given to them by Part 1.2 of theCorporations Act.
Division 2 - Financial records
2. Obligation to keep financial records
(cf. s. 286 Corporations Act)
(1) The corporation must keep written financial records that -
(a)
correctly record and explain its transactions and financial position and performance; and
(b)
would enable true and fair financial statements to be prepared and audited.
(2) The obligation to keep financial records of transactions
extends to transactions undertaken as trustee.
(3) The financial records must be retained for 7 years after the transaction covered by the records are completed.
3. Physical format
(cf. s. 288 Corporations Act)
If financial records are kept in electronic form, they must be convertible into hard copy. Hard copy must be made available within a reasonable time to a person who is entitled to inspect the records.
4. Place where records are kept
(cf. s. 289 Corporations Act)
(1) The corporation may decide where to keep the financial
records. (2)
If financial records about particular matters are kept outside Australia, sufficient written information about those matters must be kept in Australia to enable true and fair financial
statements to be prepared. (3) The corporation must give the Treasurer written notice of
the place where the information is kept.(4) The Minister may direct the corporation to produce
specified financial records that are kept outside Australia.(5) The direction must -
(a) be in writing; (b)
specify a place in Australia where the records are to be produced (the place must be reasonable in the circumstances); and
(c)
specify a day (at least 14 days after the direction is given) by which the records are to be produced.
1 November 2002 GOVERNMENT GAZETTE, WA 5377 5. Director access
(cf. s. 290 Corporations Act)
(1) A director has a right of access to the financial records at all
reasonable times.(2) On application by a director, the Supreme Court may
authorise a person to inspect the financial records on the
director's behalf.(3) A person authorised to inspect records may make copies of
the records unless the Supreme Court orders otherwise.(4) The Supreme Court may make any other orders it considers
appropriate, including either or both of the following -
(a)
an order limiting the use that a person who inspects the records may make of information obtained during the inspection;
(b)
an order limiting the right of a person who inspects the records to make copies in accordance with subclause (3).
Division 3 - Financial reporting
Subdivision I - Annual tiiiaiicial reports and directors' reports
6. Preparation of annual fliiancial reports and directors'
reports(cf. s. 292 Corporations Act)
A financial report and a directors' report must be prepared
for each financial year by the corporation before
30 September.7. Contents of annual financial report
(cf. s. 295 Corporations Act)
(1) The financial report for a financial year consists of—
(a) the financial statements for the year;
(b) the notes to the financial statements; and (c) the directors' declaration about the statements and notes.
(2) The financial statements for the year are -
(a) a profit and loss statement for the year; (b) a balance sheet as at the end of the year; (c) a statement of cash flows for the year; and (d)
if required by the accounting standards - a consolidated profit and loss statement, balance sheet and statement of cash flows.
(3) The notes to the financial statements are -
(a) disclosures required by the regulations; (b) notes required by the accounting standards; and (c)
any other information necessary to give a true and fair view.
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(4) The directors' declaration is a declaration by the directors -
(a) that the financial statements, and the notes referred to in subclause (3)(b), comply with the accounting standards; (b) that the financial statements and notes give a true
and fair view;(c) whether, in the directors' opinion, there are
reasonable grounds to believe that the corporation,
will be able to pay its debts as and when they
become due and payable; and(d) whether, in the directors' opinion, the financial statements and notes are in accordance with this Schedule, including - (i) clause 8 (compliance with accounting standards and regulations); and
(ii) clause 9 (true and fair view).
(5) The declaration must
(a)
be made in accordance with a resolution of the directors;
(b)
specify the date on which the declaration is made; and
(c) be signed by at least 2 directors.
8. Compliance with accounting standards and regulations
(cf. s. 296 Corporations Act)(1) The financial report for a financial year must comply with
the accounting standards.(2) The financial report must comply with any further
requirements in the regulations.9. True and fair view
(cf. s. 297 Corporations Act)
(1) The financial statements and notes for a financial year must give a true and fair view of—
(a) the financial position and performance of the corporation; and (b) if consolidated financial statements are required - the financial position and performance of the consolidated entity.
(2) This clause does not affect the obligation under clause 8 for a financial report to comply with accounting standards.
10. Annual directors' report
(cf. s. 298 Corporations Act)
(1) The corporation must prepare a directors' report for each
financial year.(2) The report must include -
(a) the general information required by clause 11; and (b) the specific information required by clause 12.
1 November 2002 GOVERNMENT GAZETTE, WA 5379 (3) The report must -
(a) be made in accordance with a resolution of the directors; (b) specify the date on which the report is made; and (c) be signed by at least 2 directors. 11. Annual directors' report— general information
(cf. s. 299 corporations Act)
(1) The directors' report for a financial year must - (a) contain a review of operations during the year of the
corporation and the results of those operations;
(b) give details of any significant changes in the
corporation's state of affairs during the year;(c) state the corporation's principal activities during the
year and any significant changes in the nature of
those activities during the year;
(d) give details of any matter or circumstance that has
arisen since the end of the year that has significantly
affected, or may significantly affect -
(i) the corporation's operations in future financial years;
(ii) the results of those operations in future financial years; or
(iii) the corporation's state of affairs in future financial years;
(e) refer to likely developments in the corporation's
operations in future financial years and the expected
results of those operations; and
(1) if the corporation's operations are subject to any
particular and significant environmental regulation
under a law of the State or of the Commonwealth or
of another State or a Territory - give details of the
corporation's performance in relation toenvironmental regulation.
(2) If accounting standards require consolidated financial statements, the report must be on the consolidated entity of
which the corporation is part.(3) The report may omit material that would otherwise be
included under subclause (1)(e) if it is likely to result in
unreasonable prejudice to -
(a) the corporation; or (b)
if consolidated financial statements are required - the consolidated entity or any entity (including the corporation) that is part of the consolidated entity.
(4) If material is omitted from the report, the report must say so.
12. Annual directors' report— specific information
(cf. s. 300 corporations Act)
(1) The directors' report for a financial year must include details
of— (a) dividends or distributions paid during the year;
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(b) dividends or distributions recommended or declared for payment, but not paid, during the year; and (c) the name of each person who has been a director of the corporation at any time during or since the end of the year and the period for which they were a director.
(2) If—
(a)
during or since the financial year, the corporation has indemnified against a liability a person who is or has been a director or auditor of the corporation or of a related body corporate; and
(b)
but for Schedule 2 clause 15(3) or (4), subclause (1) of that clause would have prohibited the corporation from indemnifying the person against that liability,
the report must set out -
(c) the person's name; (d) the nature of the liability; and (e) how much the corporation paid, and what else the
corporation did, by way of indemnifying the person
against the liability.
(3) If—
(a) during or since the financial year, the corporation
has made a relevant agreement (as defined in
section 9 of the Corporations Act) for indemnifying
against a liability a person who is or has been a
director or auditor of the corporation or of a related
body corporate; and(b) but for Schedule 2 clause 15(3) or (4), subclause (1)
of that clause would prohibit the corporation from
indemnifying the person against that liability,the report must set out particulars of the relevant agreement,
including -
(c) the person's name;
(d) the nature of the liability; and (e) how much the relevant agreement provides for the
corporation to pay, and what else it provides for the
corporation to do, by way of indemnifying the
person against the liability.
(4) If—
(a)
during or since the financial year, the corporation has paid, or agreed to pay, a premium in respect of a contract insuring against a liability a person who is or has been a director or auditor of the corporation or of a related body corporate; and
(b)
but for Schedule 2 clause 15(8), subclause (5) of that clause would have prohibited the corporation from paying, or agreeing to pay, the premium,
the report must -
(c)
name the person and state that the corporation has paid, or agreed to pay, a premium in respect of a contract insuring the person against a liability; and
1 November 2002 GOVERNMENT GAZETTE, WA 5381 (d) set out, except so far as prohibited by the contract itself, the nature of the liability and the amount of the premium.
(5) The report must also include details of—
(a)
each director's qualifications, experience and special responsibilities;
(b)
the number of meetings of the board held during the year and each director's attendance at those meetings; and
(c)
the number of meetings of each board committee held during the year and each director's attendance at those meetings.
13. Annual directors' report - other specific information
(cf. s. 300A Corporations Act)The directors' report for a financial year must also include -
(a) discussion of board policy for determining the nature and amount of emoluments of board members and senior executives of the corporation; (b) discussion of the relationship between such policy and the corporation's performance; and (c) the emolument of each director and each of the
details of the nature and amount of each element of highest emolument.
14. Audit of annual financial report
(cf. s. 301 Corporations Act)The corporation must have the financial report for a financial year audited by the Auditor General in accordance with Subdivision 2 and clauses 38 and 45 and obtain an auditor's report.
Subdivision 2— Audit and auditor's report
15. Audit opinion
(cf. s. 307 Corporations Act)The Auditor General must form an opinion about -
(a)
whether the financial report is in accordance with this Schedule, including -
(I) clause 8 (compliance with accounting
standards and regulations); and
(ii) clause 9 (true and fair view);
(b)
whether he or she has been given all information, explanation and assistance necessary for the conduct of the audit;
(c)
whether the corporation has kept financial records sufficient to enable a financial report to be prepared and audited; and
(d)
whether the corporation has kept other records and registers as required by this Schedule.
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16. Auditor General's report on annual financial report
(cf. 5. 308 corporations Act)
(1) The Auditor General must report to the Minister on whether
he or she is of the opinion that the financial report is in
accordance with this Schedule, including -
(a)
clause 8 (compliance with accounting standards and regulations); and
(b) clause 9 (true and fair view).
(2) If not of that opinion, the Auditor General's report must say
why.
(3) If the Auditor General is of the opinion that the financial
report does not comply with an accounting standard, his or
her report must, to the extent it is practicable to do so,
quantify the effect that non-compliance has on the financialreport.
(4) If it is not practicable to quantify the effect fully, the report
must say why.
(5) The Auditor General's report must describe -
(a) any defect or irregularity in the financial report; and (b)
any deficiency, failure or shortcoming in respect of the matters referred to in clause 15.
(6) The report must specify the date on which it is made.
(7) The Auditor General must give a copy of the report to the
directors as soon as practicable after it has been given to the
Minister.17. Auditor General's power to obtain information
(cf. s. 310 corporations Act)
The Auditor General -
(a)
has a right of access at all reasonable times to the books of the corporation; and
(b)
may require any officer to give the Auditor General information, explanations or other assistance for the
purposes of the audit or review.
18. Assisting Auditor General (cf s.312 corporations Act)
An officer of the corporation must -
(a)
allow the Auditor General access to the books of the corporation; and
(b)
give the Auditor General any information, explanation or assistance required under clause 17.
Subdivision 3 - Special provisions about consolidated
financial statements
19. Directors and officers of controlled entity to give
information(cf. s. 323 corporations Act)
If the corporation has to prepare consolidated financial statements, a director or officer of a controlled entity must
1 November 2002 GOVERNMENT GAZETTE, WA 5383 give the corporation all information requested that is
necessary to prepare the consolidated financial statementsand the notes to those statements.
20. Auditor General's power to obtain information from
controlled entity(cf. s. 323A Corporations Act)
(1) Where the financial report includes consolidated financial statements, the Auditor General -
(a) has a right of access at all reasonable times to the books of any controlled entity; and (b) may require any officer of the entity to give the Auditor General information, explanations or other assistance for the purposes of the audit or review.
(2) The information, explanations or other assistance required under subclause (1)(b) is to be given at the expense of the corporation.
21. Controlled entity to assist the Auditor General
(cf. s. 323B Corporations Act)If the corporation has to prepare a financial report that includes consolidated financial statements, an officer or auditor of a controlled entity must -
(a)
allow the Auditor General access to the controlled entity's books; and
(b)
give the Auditor General any information, explanation or assistance required under clause 20.
22. Application of subdivision to entity that has ceased to be
controlled(cf. s. 323C Corporations Act)
Clauses 19, 20 and 21 apply to the preparation or audit of a financial report that covers a controlled entity even if the
entity is no longer controlled by the corporation when its financial report is being prepared or audited.
Subdivision 4—Financial years of the corporation and the
entities it controls
23. Financial years
(cf. s. 323D Corporations Act)(1) The financial year of the corporation is the 12 month period
ending on 30 June.(2) Where the corporation has to prepare consolidated financial
statements, it must do whatever is necessary to ensure that
the financial years of the consolidated entities are
synchronised with its own financial years.(3) It must achieve this synchronisation by the end of 12 months
after the situation that calls for consolidation arises.
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Division 4 - Accounting standards 24. Accounting standards
(cf. s. 334 Corporations Act)
(1) An accounting standard applies to -
(a)
periods ending after the commencement of the standard; or
(b)
periods ending, or starting, on or after a later date specified in the standard.
(2) The corporation may elect to apply the accounting standard
to an earlier period unless the standard says otherwise.
(3) The election must be made in writing by the directors.25. Equity accounting
(cf. s. 335 Corporations Act)
This Schedule (and, in particular, the provisions on consolidation of financial statements) does not prevent accounting standards from incorporating equity accounting principles.
26. Interpretation of accounting standards
(cf. s. 337 Corporations Act)
In interpreting an accounting standard -
(a)
unless the contrary intention appears, expressions used in the standard have the same meaning as they have in Chapter 2M of the Corporations Act; and
(b)
the provisions of Part 1.2 of the Corporations Act apply as if the standard's provisions were provisions of that Chapter.
27. Evidence of text of accounting standard
(cf. s. 339 Corporations Act)(1) This clause applies to a document that purports to be
published by or on behalf of the AASB or ASIC and to set
out the text of—
(a)
a specified standard as in force at a specified time under section 334 of the Corporations Act; or
(b) a specified provision of a standard of that kind.
(2) It also applies to a copy of a document of that kind.
(3) In the absence of evidence to the contrary, a document to
which this clause applies is proof in proceedings under this
Act that -
(a)
the specified standard was in force at that time under that section; and
(b)
the text set out in the document is the text of the standard referred to in subclause (1)(a) or the provision referred to in subclause (1)(b).
1 November 2002 GOVERNMENT GAZETTE, WA 5385 Division 5 - Exemptions and modifications
28. Treasurer's power to make specific exemption orders
(cf. s. 340 Corporations Act)(1) On an application made in accordance with subclause (3) in relation to the corporation, the Treasurer may make an order in writing relieving any of the following from all or
specified requirements of Divisions 2 and 3 -
(a) the directors; (b) the corporation; (c) the Auditor General.
(2) The order may -
(a) be expressed to be subject to conditions; and (b) be indefinite or limited to a specified period.
(3) The application must be -
(a) authorised by a resolution of the directors; (b) in writing and signed by a director; and (c) lodged with the Treasurer.
(4) The Treasurer must give the corporation written notice of the making, revocation or suspension of the order.
(5) If the Treasurer makes an order under subclause (1) the
Treasurer is to cause the text of the order to be laid before
each House of Parliament within 14 days after the order is
made.(6) If at the commencement of the period referred to in
subclause (5) a House of Parliament is not sitting and the
Treasurer is of the opinion that that House will not sit during
that period, the Treasurer is to transmit a copy of the order
to the Clerk of that House and the copy of the order sotransmitted is to be -
(a) taken to have been laid before that House; and (b) taken to be a document published by order or under the authority of that House.
(7) The laying of a copy of a document that is taken to have
occurred because of subclause (6)(a) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the receipt of the copy by the
Clerk.
29. Criteria for specific exemption orders and class orders
(cf. s. 342 Corporations Act)
To make an order under clause 28, the Treasurer must be satisfied that complying with the relevant requirements of Divisions 2 and 3 would -
(a)
make the financial report or other reports misleading;
(b) be inappropriate in the circumstances; or (c) impose unreasonable burdens.
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30. Extension of time
(1) Where any provision of this Schedule requires any act or
thing to be observed or performed by a certain date or within
a specified time by a person, other than the Auditor General,
the Minister may on application by that person extend the
date of, or the time for observance or performance of such
act or thing to such date or time as the Minister thinks
appropriate.(2) Where the Minister grants an extension of time under
subclause (1), the provisions of clause 28(5) shall, with all
necessary changes, apply to the memorandum evidencing
the extension as if it were an order for the purposes of that
subclause.Division 6— Sanctions for contraventions of this Schedule
31. Contravention of Divisions 2 and 3
(cf. s. 344 Corporations Act)
(1) A director of the corporation contravenes this subclause if
he or she fails to take all reasonable steps to comply with, or
to secure compliance with, Division 2 or 3.
(2) The penalty applicable to a contravention of subclause (1)
is -
(a) in a case to which paragraph (b) does not apply, $5 000; or (b) if the offence was committed with intent to deceive or defraud the Minister or the Treasurer or creditors of the corporation, $20 000 or imprisonment for 5 years or both.
(3) Subclause (1) does not apply to clause 17, 18, 20 or 21.
Division 7— Nliscellaneous
35. Deadline for reporting to the Minister
(cf. s. 315 Corporations Act)(1) In subclause (2) -
"the prescribed day" means the 10th working day afterreceipt by the directors under clause 16 of the Auditor
General's report.
(2) The corporation shall as soon as practicable but not later
than the close of business on the prescribed day in each year
send to the Minister a copy of the annual report required by
section 62 of this Act.36. Annual financial reporting to the Minister
(cf. s. 314 Corporations Act)
The annual report of the corporation under section 62 is to contain the following documents -
(a) the financial report for the year;
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(b) the directors' report for the year; (c) the Auditor General's report on the financial report; (d) a copy of any order of the Treasurer under clause 28. 38. Audit
(1) If the Auditor General cannot complete the audit of the corporation by 30 September in any year he or she is to submit an interim report to the Minister setting out the reasons for his or her inability to complete the audit by that date, and the Minister is to cause copies of the report to be
laid before both Houses of Parliament, within 7 sitting days
of receiving that report.(2) Section 92 of the Financial Administration and Audit
Act 1985 applies to the audit of the corporation.45. Powers and duties of the Auditor General
(1) If the Auditor General in the course of the performance of duties as auditor of the corporation and its subsidiaries, is satisfied that —
(a)
there has been a contravention of any provision of this Schedule; and
(b)
the circumstances are such that in the Auditor General's opinion the matter has not been or will not be adequately dealt with by comment in the Auditor General's report on the financial statements or by bringing the matter to the notice of the board of the corporation,
the Auditor General is to forthwith report the matter to the
Minister in writing.
(4) The provisions of sections 78 to 80 and 82 to 91 and section 95 of the Financial Administration and Audit Act 1985 apply to the corporation as if it were a statutory
authority named in Schedule 1 of that Act.
r Reprinted as at 4 January 2000.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 113 and Act No. 20 of 20021
Recommended by the Minister for Energy
By Command of the Governor,
M. C. WAUCHOPE, Clerk of the Executive Council.
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