Trust Bank Sale Act 1999 (TAS)

Trust Bank Sale Act 1999

An Act to enable and provide for the sale of the undertaking of Trust Bank, to repeal the Trustee Banks Act 1985 , the Trust Bank (Arrangements) Act 1991 and the Trust Bank (Corporatisation) Act 1997 and for related purposes

[Royal Assent 26 November 1999]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1Preliminary1Short titleThis Act may be cited as the Trust Bank Sale Act 1999 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Interpretation (1)  In this Act – adjustment date has the meaning given to that term in the sale of business deed; assumed liabilities has the meaning given to that term in the sale of business deed; Bank means, on and before the vesting time, Trust Bank and, after the vesting time, TB No. 1; Bank assets means assets as defined in the sale of business deed; Board means the Tasmanian Community Fund Board established under section 35 ; chief executive officer, in relation to the Bank or the purchaser, means the officer in charge of the day-to-day management of the affairs of the Bank or the purchaser, as the case may be, or a person appointed by that officer in writing; completion meeting date has the meaning given to that term in the sale of business deed; Crown means the Crown in right of Tasmania; Crown’s costs means all costs and expenses incurred by the Crown in connection with, or in respect to, the sale process as declared by the Treasurer under section 13 ; employees has the meaning given to that term in the sale of business deed; employing entity means the purchaser or, if the purchaser so nominates in writing to the Bank before the vesting time, Colonial Services Pty Ltd (A.C.N. 075 733 023); excluded assets has the meaning given to that term in the sale of business deed; excluded instrument means – (a) the sale of business deed; and (b) a legal instrument to the extent to which it concerns or relates to excluded assets, excluded liabilities or employees; excluded liabilities has the meaning given to that term in the sale of business deed; Fund means the Tasmanian Community Fund established under section 33 ; legal instrument includes a contract, arrangement, conveyance, deed, lease, licence or other instrument or document and any commitment, promise or oral agreement but does not include an enactment; liabilities means all liabilities, debts and obligations (whether present or future and whether vested or contingent); officer means a director or secretary, or former director or secretary, of the Bank and an employee, or former employee, of the Bank whose title includes or included the word "Manager"; property means property and assets of every description and includes securities, rights and powers of every description; purchase price has the meaning given to that term in the sale of business deed; purchaser means State Bank of New South Wales Limited (ACN 003 963 228); register includes a book of registry and an index relating to registration; Register of Trustee Banks has the meaning given to that expression in the Trustee Banks Act 1985 ; sale of business deed means the deed made on 16 November 1999 between the Bank, the Treasurer on behalf of the Crown and the purchaser, as altered from time to time, under which the Bank is to transfer substantially all of the undertaking and banking business of the Bank to the purchaser as at the vesting time, and pursuant to which the Treasurer gives certain indemnities, commitments and promises in favour of the purchaser; security includes a mortgage (whether legal or equitable), charge, debenture, bill of exchange, promissory note, guarantee, indemnity, lien, pledge or other means of securing the payment of a debt, whether present or future, or the discharge of an obligation or liability, whether actual, prospective or contingent; subsidiary means any of the following subsidiaries of the Bank: (a) Rondole Pty Ltd (ACN 060 170 621); (b) Homer JV Pty Ltd (ACN 064 697 918); (c) 14 KD Pty Ltd (ACN 068 933 344); (d) NC Pty Ltd (ACN 072 517 232); TB No. 1 means TB No. 1 Limited, the name which will be adopted by the Bank immediately after the vesting time; transfer legislation means – (a) the Financial Sector (Transfer of Business) Act 1999 of the Commonwealth; and (b) the Financial Sector Reform (Tasmania) Act 1999 ; and (c) the Financial Sector Reform (New South Wales) Act 1999 of New South Wales; and (d) the Financial Sector Reform (Victoria) Act 1999 of Victoria; and (e) the Financial Sector Reform (Queensland) Act 1999 of Queensland; and (f) the Financial Sector (Transfer of Business) Act 1999 of South Australia; and (g) the Acts Amendment and Repeal (Financial Sector Reform) Act 1999 of Western Australia; and (h) the Financial Sector Reform (ACT) Act 1999 of the Australian Capital Territory; and (i) the Financial Sector Reform (Northern Territory) Act 1999 of the Northern Territory; Trust Bank means the body corporate of that name in existence immediately before the commencement of this Act under the Trustee Banks Act 1985 ; Trust Bank Foundation means the trusts established under the deed containing a Declaration of Trust executed by the Bank on 26 October 1985 and the deeds of variation of that Declaration of Trust executed by the Bank on 7 December 1989 and 17 December 1991; undertaking means the Bank assets and assumed liabilities being transferred to the purchaser pursuant to the sale of business deed; vesting time means the time at which payment of the amount of $132 million is made by the purchaser, pursuant to the sale of business deed, on the completion meeting date. (2)  Any term which is defined in the sale of business deed and is not referred to in subsection (1) has, unless the contrary intention appears, the same meaning in this Act as in the sale of business deed. 4Crown to be boundThis Act binds the Crown and, so far as the legislative power of Parliament permits, in all its other capacities. 5Extra-territorial applicationIt is the intention of Parliament that this Act should apply, as far as possible – (a) both in and outside Tasmania; and (b) outside Tasmania to the full extent of the extra-territorial legislative power of the Parliament of Tasmania; and (c) to land situated outside Tasmania, whether in or outside Australia; and (d) to things situated outside Tasmania, whether in or outside Australia; and (e) to legal instruments affecting property or obligations existing outside Tasmania, whether in or outside Australia; and (f) to acts, transactions and matters done, entered into or occurring outside Tasmania, whether in or outside Australia; and (g) to things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a place outside Tasmania, whether in or outside Australia. 6Act to have effect despite Corporations LawThis Act has effect despite any provision of the Corporations Law. 7Bank not a Crown instrumentalityThe Bank is not, and does not represent, the Crown, is not an instrumentality or agency of the Crown and is not entitled to any immunity or privilege of the Crown. PART 2Corporatisation of the Bank8Application for registration of the Bank as a company (1) Immediately after the vesting time – (a) the Bank is taken to have applied to the Australian Securities and Investments Commission under Part 5B.1 of the Corporations Law for the Bank to be registered as a public company limited by shares within the meaning of the Corporations Law if the Bank has not previously so applied; and (b) the Bank is to apply to the Australian Securities and Investments Commission under section 152 of the Corporations Law for reservation of the name "TB No. 1 Limited" if the Bank has not previously so applied; and (c) the directors of the Bank are to cease to be directors of the Bank and the Treasurer, by notice published in the Gazette, is to appoint new directors of TB No. 1 for such periods and on such terms and conditions as are specified in that notice. (2) The Bank is taken to be entitled to make any applications referred to in subsection (1) and to lodge any documents associated with the applications. (3) If it has not already occurred, the name "TB No. 1 Limited" is taken to have been reserved under section 152 of the Corporations Law immediately after lodgment of the application referred to in subsection (1)(b) . (4)  A notice referred to in subsection (1)(c) is not a statutory rule for the purposes of the Rules Publication Act 1953 . 9Registration of the Bank as a companyImmediately after the vesting time – (a) the application referred to in section 8(1)(a) is taken to have been granted; and (b) the Bank is taken to have been registered – (i) by the name "TB No. 1 Limited"; and (ii) under section 601BD of the Corporations Law, as a public company, and a company limited by shares; and (iii) with no constitution, so that its internal management is governed by the replaceable rules in the Corporations Law. 10Issue of initial sharesImmediately after the vesting time – (a) TB No. 1 is taken to have issued 100 shares (in this section referred to as "the initial shares") to the Treasurer on behalf of the Crown; and (b) the initial shares are to be the only shares on issue in TB No. 1. PART 3Sale process11Power of sale (1)  Notwithstanding the provisions of the Trustee Banks Act 1985 , the Bank has the power to sell, transfer or dispose of any real or personal property or liabilities of the Bank, including all or substantially all of the business and undertaking of the Bank, and has power to do any act, matter or thing in relation to the sale, transfer or disposal of the property or liabilities. (2) The Treasurer has the power to provide any commitments, promises or indemnities to the purchaser in relation to any sale, transfer or disposal that occurs pursuant to subsection (1) . (3) The Bank and the Treasurer are each authorised to negotiate, enter into and carry out (in the case of the Treasurer, on behalf of the Crown) the sale of business deed and to do all acts, matters and things and execute and deliver all documents and instruments which may be necessary or reasonably required to give full force and effect to the provisions of the sale of business deed and the vesting of the undertaking of the Bank contemplated by the sale of business deed. (4) The sale of business deed may be entered into before, on or after the day on which this Act commences and, if entered into before that day, the sale of business deed and any act, matter or thing done pursuant to that deed is validated to the extent of any invalidity. (5) The Treasurer may agree with the Bank and the purchaser to alter the sale of business deed and may execute and deliver any document to effect such an alteration. 12Release of special capital noteAt the vesting time – (a) the liability of the Bank to make any payment under the special capital note on issue by the Bank to the State is released; and (b) the special capital note is cancelled and the Bank’s reserves are increased by the face value of that note. 13Declarations by Treasurer (1)  The Treasurer, by notice published in the Gazette, must declare the individual amounts which – (a) represent 20 per cent of the purchase price to be held against any contingent liability created by the commitments, promises and indemnities provided by the Treasurer to the purchaser under the sale of business deed; and (b) in the opinion of the Treasurer, are sufficient to be held against any liabilities or outstanding and ongoing obligations of TB No. 1 including any obligation to meet any payment for which the Bank may become liable to the purchaser on the adjustment date; and (c) in the opinion of the Treasurer, are sufficient to meet the Crown’s costs. (2)  A declaration by the Treasurer under subsection (1) may be made in one or more notices. (3)  A notice referred to in subsection (1) is not a statutory rule within the meaning of the Rules Publication Act 1953 . 14Calculation and application of net first instalment (1) The net first instalment associated with the sale of the undertaking of the Bank is to be determined by subtracting from the amount received by the Treasurer at the vesting time the sum of the amounts declared by the Treasurer under sections 13 and 42 . (2)  The net first instalment determined under subsection (1) is to be applied by the Treasurer in the retirement of State debt. (3)  Where there is a remaining balance in the account established under section 15(1) at the latest of – (a) the date declared by the Treasurer under section 32 as being the date on which TB No. 1 is dissolved; or (b) the second anniversary of the completion meeting date; or (c) the date on which the Treasurer ceases to have any liability under the sale of business deed – that amount is to be applied by the Treasurer in the retirement of State debt. (4) Any amount received by the Treasurer on the adjustment date is to be applied by the Treasurer in the retirement of State debt. 15Disbursements (1) The Treasurer must establish an account within the Special Deposits and Trust Fund and, out of the amount received by the Treasurer at the vesting time, pursuant to the sale of business deed, must deposit into that account the amounts declared under section 13(1)(a) and (b) . (2) The Treasurer, from time to time, is to transfer to TB No. 1, from the account established under subsection (1) , such amounts as, in the opinion of the Treasurer, are required for the purposes of meeting the liabilities or outstanding and ongoing obligations of TB No. 1. (3)  The amount declared by the Treasurer under section 13(1)(c) is to be transferred to the Consolidated Fund as if it were revenue of the Department. PART 4Integration of the Bank and the purchaser16Effect of integration (1)  This section applies to the following: (a) the operation of, or anything done under, this Act; (b) the operation of, or anything done under, any of the transfer legislation; (c) the sale of the undertaking of the Bank; (d) the sale of business deed and the performance of the sale of business deed; (e) any other agreement or arrangement under or entered into for the purposes of this Act, any of the transfer legislation or the sale of business deed; (f) a disclosure of information made for the purposes of the sale or proposed sale of the undertaking of the Bank or made pursuant to this Act or the sale of business deed. (2)  To avoid doubt, none of the matters or things referred to in subsection (1) are to be regarded – (a) as a breach of confidence or otherwise as a civil wrong or as giving rise to a breach of or an offence against a provision of an Act that prohibits or restricts the disclosure of information; or (b) as a breach of contract or another legal instrument or as requiring any act to be done under a legal instrument; or (c) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets or liabilities; or (d) as giving rise to any right or remedy by a person under a legal instrument, or causing or permitting the termination of a legal instrument, or fulfilling any condition which allows a person to exercise a right, remedy or power under a legal instrument or liability; or (e) as an event of default under any legal instrument; or (f) as releasing any surety or other obligee wholly or in part from any liability. (3)  Without limiting subsection (1) , where, but for this section, the advice or consent of any person would be necessary to carry out any action authorised by this Act, that advice or consent is taken to have been given. (4)  This Act has effect, or is taken to have had effect, despite anything contained in any other Act. (5)  Subsections (2) and (3) do not affect, and a reference in subsection (2) to a contract or a legal instrument does not include, the sale of business deed. 17Vesting of undertaking (1) This Act is to be read and construed having regard to, and so as to give effect to, the intention evidenced by the sale of business deed that – (a) the Bank assets are to be sold and transferred to the purchaser and the assumed liabilities are to be assumed by the purchaser; and (b) the excluded assets and the excluded liabilities are to remain assets and liabilities of the Bank. (2) All excluded assets and excluded liabilities which are not transferred to the purchaser under the sale of business deed are vested in, and assumed by, TB No. 1. 18Effect of legal instruments (1) On and after the vesting time, each translated instrument, other than an excluded instrument, continues to have effect, according to its tenor, as if a reference in the instrument to the Bank were a reference to the purchaser. (2)  For the purposes of subsection (1) , translated instrument means a legal instrument subsisting immediately before the vesting time – (a) to which the Bank is, or is taken to be, a party; or (b) that was, or was taken to be, given to, by or in favour of the Bank; or (c) that refers, or is taken to refer, to the Bank; or (d) under which money is, or may become, payable, or other property is, or may become, liable to be transferred, to or by the Bank. 19Directors, &c., of the Bank not directors of the purchaserA director, secretary or auditor of the Bank is not, by reason only of this Part, a director, secretary or auditor, as the case may be, of the purchaser. 20No actions against officers of the Bank or TB No. 1 (1) To the maximum extent permitted by law, the Crown is to indemnify and keep indemnified all officers from and against all actions, claims, demands, losses, damages, proceedings, costs, charges and expenses which may be suffered, sustained or incurred by the officers as a result of, in respect of or in connection with, whether directly or indirectly – (a) the performance or non-performance of their duties as officers; and (b) the operation and management of the Bank. (2) No action in any court or tribunal may be commenced or continued against any officer in connection with – (a) the performance or non-performance of his or her duties as an officer; and (b) the operation and management of the Bank. (3)  Subsections (1) and (2) do not apply if the performance or non-performance of the duties of the officer in connection with the operation or management of the Bank is fraudulent or grossly negligent. (4) Except as may arise under the sale of business deed, no action in any court or tribunal may be commenced or continued against TB No. 1. 21Transitional provisions (1) Subject to this section, the following provisions have effect in relation to the banking business of the Bank: (a) the relationship between the Bank and a customer or depositor of the Bank is, on and after the vesting time, a relationship between the purchaser and that customer or depositor, and, on and after the vesting time, gives rise to the same rights and the same duties (including rights of set-off) as would have existed immediately before that time if that relationship had been between the purchaser and the customer or depositor; (b) any instruction, order, direction, mandate, consent or authority given by a customer or depositor of the Bank to the Bank and subsisting on or given after the vesting time is, unless and until revoked or cancelled, taken to have been given to the purchaser; (c) any security held by the Bank as security for the payment of the debts or liabilities (whether present or future or certain or contingent) of any person which is transferred to the purchaser as at the vesting time is, on and after the vesting time, to be held by and to be available to the purchaser as security for the payment of those debts and liabilities to the purchaser (but not, by reason only of this Part, as security for any debt or liability of that person to the purchaser existing immediately before the vesting time); (d) where any security extends to future advances to, or to future liabilities of, that person, the security, on and after the vesting time and subject to any agreement between the purchaser and that person, is to be held by and be available to the purchaser as security for future advances to that person by, and future liabilities of that person to, the purchaser, to the same extent to which future advances by, or liabilities to, the Bank were secured immediately before the vesting time; (e) the purchaser is, in relation to any security transferred to the purchaser as at the vesting time and the money, liability or obligation secured by the security, entitled, on and after the vesting time, to the same rights and priorities and subject to the same liabilities as the Bank would have been entitled and subject to, if the security had continued to be held by the Bank; (f) the custody of any document, goods or thing held by the Bank as bailee for any other person at any office or branch or agency of the Bank is, by virtue of this Part, transferred to the purchaser, on and after the vesting time, and the rights, duties and liabilities of the Bank under any contract of bailment relating to the document, goods or thing are transferred to the purchaser; (g) any negotiable instrument or order for the payment of money drawn, given, accepted or endorsed before the vesting time, which is expressed to be drawn by, drawn on, or given to or accepted or endorsed by the Bank, or payable at any place of business of the Bank, has the same effect after the vesting time as if it had been drawn by, drawn on, or given to or accepted or endorsed by the purchaser, or payable at the same place of business of the purchaser; (h) any information in whatever form held immediately before the vesting time by the Bank relating to a customer or depositor of the Bank, or otherwise relating to the Bank’s business, is, on and after the vesting time, authorised to be disclosed to the purchaser and is available to and may be used by the purchaser. (2)  Despite subsection (1) and sections 17 and 18  – (a) the purchaser is, in relation to any security held by it over any money on deposit with the Bank immediately before the vesting time, entitled, on and after the vesting time, to the same rights and priorities and subject to the same liabilities as it would have been had the money on deposit continued to be held by the Bank; and (b) the purchaser is, in relation to any security held by the Bank over money on deposit with the purchaser immediately before the vesting time, entitled, on and after the vesting time, to the same rights and priorities and subject to the same liabilities as the Bank would have been had the security continued to be held by the Bank. (3)  Nothing in subsection (1) or (2) applies in relation to, or affects, an excluded asset or an excluded liability. 22Legal proceedings, &c. (1) If, immediately before the vesting time, proceedings (including arbitration proceedings) to which the Bank was a party were pending or existing in a court or tribunal, the purchaser is, on and after the vesting time, substituted for the Bank as a party to the proceedings and has the same rights in the proceedings as the Bank had immediately before the vesting time. (2)  Nothing in subsection (1) applies in relation to proceedings (including arbitration proceedings) to the extent that they concern or relate to an excluded asset or an excluded liability. 23Evidence (1) Any book or document which, if this Part had not been enacted and the transfer of the undertaking of the Bank had not occurred, would have been evidence in respect of any matter for or against the Bank is, subject to this Part and as and from the vesting time, admissible in evidence in respect of the same matter for or against the purchaser. (2)  Without limiting subsection (1) , the books of account of the Bank, for the purposes of any statute in any jurisdiction relating to evidence, are taken to be, and to have been, books of account used in the ordinary business of the purchaser. (3)  Nothing in subsection (1) applies in relation to a matter to the extent that it concerns or relates to an excluded asset or an excluded liability. 24Place of businessOn and after the vesting time, a place that, immediately before the vesting time, was a place of business of the Bank, in relation to the business that was transferred to the purchaser pursuant to the sale of business deed, is taken to be a place of business of the purchaser. 25Bank employees (1) A person who was an employee of the Bank immediately before the vesting time – (a) becomes an employee of the employing entity with effect from the vesting time; and (b) has an accrued entitlement to long service leave, sick leave, recreation leave or other like benefits, in connection with the employment of the person with the employing entity, that is equivalent to the accrued entitlement to those benefits that the person had, immediately before that time, in respect of the person’s employment by the Bank. (2) The service of a person who becomes an employee of the employing entity under subsection (1) (in this section referred to as "a transferred employee") is to be regarded, for all purposes, as having been continuous with the service of the person, immediately before the vesting time, as an employee of the Bank. (3) The terms and conditions of employment of a transferred employee immediately before the vesting time become his or her terms and conditions of employment with the employing entity after the vesting time. (4) A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of the Bank because of this Part. (5) A transferred employee who was a member of the superannuation fund of the Bank, immediately before the vesting time, remains a member of that fund after the vesting time and, for the purposes of the superannuation fund of the Bank, is not to be regarded as leaving the employment of the Bank only by reason of being a transferred employee. (6) A transferred employee or an officer who, immediately before the vesting time, was a member of the Board of Trustees of the superannuation fund of the Bank in the capacity of an employer representative, ceases to be such a member on and from the vesting time. (7)  In this section, terms and conditions of employment means contractual terms and conditions of employment but does not include terms and conditions which the Bank, in its discretion, granted to an employee before the vesting time. 26Interests in landWhere any interest in land of which the Bank is, or is deemed or taken to be, the registered proprietor is vested in the purchaser, notwithstanding anything to the contrary in any written law or other law – (a) the purchaser is taken to be the registered proprietor of the interest in land for the purposes of the Land Titles Act 1980 and the land may be dealt with accordingly; and (b) the purchaser has the same rights and remedies in respect of the interest as the Bank had immediately before the vesting time. 27Action by Recorder of Titles or Registrar-General (1)  On being requested to do so and on delivery of any relevant instrument or document under the Land Titles Act 1980 , the Recorder of Titles must make any recordings in the Register that are necessary because of the operation of this Act or any of the transfer legislation. (2) On being requested to do so and on production of any relevant instrument or document, the Registrar-General must make all entries on records of enrolment of any Crown grant and on any memorial relating to any land concerned that are necessary because of the operation of this Act or any of the transfer legislation. 28Certificates in relation to charges (1) Section 268(1) of the Corporations Law of each jurisdiction is taken to have been complied with (including for the purposes of section 265(14) of the Corporations Law of each jurisdiction) in respect of all charges of which the purchaser becomes the holder by virtue of any of the transfer legislation if there is lodged with the Australian Securities and Investments Commission a certificate, signed by the chief executive officer of the purchaser, stating that substantially all of the undertaking of the Bank has become vested in the purchaser. (2)  In subsection (1) , "jurisdiction" means a State or a Territory. 29Other propertyIf any property (other than property to which section 26 , 27 or 28 applies) becomes the property of the purchaser pursuant to the sale of business deed or the Financial Sector Reform (Tasmania) Act 1999 and any person or authority has, under any written law, responsibility for keeping a register in respect of property of that kind – (a) the purchaser is taken to be the registered proprietor, holder or owner of the property; and (b) any requirement of that written law relating to the transfer of that property from one person to another is taken to have been complied with if there is lodged with that person or authority a certificate, signed by the chief executive officer of the purchaser, stating that the undertaking of the Bank has become vested in the purchaser; and (c) that person or authority, on being requested to do so and on delivery of any relevant instrument, is to make any amendments to that register which are necessary to make it accurately reflect the effect of this Part. 30Certificates conclusive (1)  For all purposes and in all courts, tribunals and proceedings, a certificate under this Act is conclusive evidence of the matters certified except so far as the contrary is established. (2)  A document purporting to be a certificate under this Act is, unless the contrary is established, taken to be such a certificate and to have been properly given. 31Application of banking laws (1) Except to the extent that an exemption is directly contemplated by, or is a necessary consequence of, this Part, nothing in this Part exempts the purchaser or the Bank from the provisions of any written law relating to companies carrying on the business of banking. (2) The transfers and integration effected by this Part are in addition to, and not in substitution for, any transfers or integration effected by or under any of the transfer legislation. 32Dissolution of TB No. 1 (1) Immediately after the vesting time, TB No. 1 ceases to be registered as a trustee bank in the Register of Trustee Banks. (2) When the Treasurer is satisfied that each of the subsidiaries has no outstanding liabilities or obligations and may be dissolved, the Treasurer, by notice published in the Gazette, may declare a date on which the subsidiaries are to be dissolved under the Corporations Law and on that date the subsidiaries are dissolved. (3)  A declaration by the Treasurer under subsection (2) may be made in one or more notices. (4) On the dissolution of each subsidiary under subsection (2) , any remaining assets of that subsidiary vest in the Crown. (5)  On the dissolution of all the subsidiaries under subsection (2) and when the Treasurer is satisfied that TB No. 1 has no outstanding liabilities or obligations and may be dissolved, the Treasurer, by notice published in the Gazette, may declare a date on which TB No. 1 is to be dissolved under the Corporations Law and on that date TB No. 1 is dissolved. (6) On the dissolution of TB No. 1 under subsection (5) , any remaining assets of TB No. 1 vest in the Crown. (7)  A notice referred to in subsection (2) or (5) is not a statutory rule for the purposes of the Rules Publication Act 1953 . PART 5Tasmanian community fund33Establishment of Tasmanian Community Fund (1) Before the vesting time, the Treasurer is to establish an account within the Special Deposits and Trust Fund to be known as the Tasmanian Community Fund. (2)  Any amounts determined in accordance with section 34 are to be paid into the Fund each year out of the Consolidated Fund without further appropriation other than this section. (3) The Trust Bank Foundation is extinguished on and from the vesting time. 34Amounts to be paid into Tasmanian Community Fund (1) Money standing to the credit of the Trust Bank Foundation immediately before the vesting time is to be transferred into the Fund at the vesting time. (2)  Immediately following the retirement of State debt under section 14(2) , the Treasurer, by notice published in the Gazette, is to declare the amount to be paid into the Fund in respect of the period from the date of the declaration to the next 30 June. (3)  The amount referred to in subsection (2) is to be determined in accordance with the following formula: where – A is the amount referred to in subsection (2) ; B is the amount of State debt retired under section 14(2) ; C is the number of full months in respect of the period from the date of the declaration in subsection (2) to the next 30 June. (4)  Immediately following the retirement of State debt under section 14(3) , the Treasurer, by notice published in the Gazette, is to declare the amount to be paid into the Fund in respect of the period from the date of the declaration to the next 30 June. (5)  The amount referred to in subsection (4) is to be determined in accordance with the following formula: where – D is the amount referred to in subsection (4) ; E is the amount of State debt retired under section 14(3) ; F is the number of full months in respect of the period from the date of the declaration in subsection (4) to the next 30 June. (6)  Immediately following the retirement (if any) of State debt under section 14(4) , the Treasurer, by notice published in the Gazette, is to declare the amount to be paid into the Fund in respect of the period from the date of the declaration to the next 30 June. (7)  The amount referred to in subsection (6) is to be determined in accordance with the following formula: where – G is the amount referred to in subsection (6) ; H is the amount of State debt retired (if any) under section 14(4) ; I is the number of full months in respect of the period from the date of the declaration in subsection (6) to the next 30 June. (8)  Subject to subsection (9) , in each financial year following that in which a declaration is made under subsection (2) , the total amount to be paid into the Fund is to be determined in accordance with the following formula: where – J is the total amount to be paid into the Fund; A is the amount determined in accordance with subsection (3) ; C is the number of full months used in the calculation of A; D is the amount determined in accordance with subsection (5) ; F is the number of full months used in the calculation of D; G is the amount determined in accordance with subsection (7) ; I is the number of full months used in the calculation of G. (9)  The amount determined in accordance with subsection (8) is to be indexed in each financial year, in accordance with the ratio of the most recent March quarter Consumer Price Index (Hobart) number to the March quarter Consumer Price Index (Hobart) number in the preceding year. (10)  A notice referred to in subsection (2) , (4) or (6) is not a statutory rule for the purposes of the Rules Publication Act 1953 . 35Establishment of Board (1) There is to be a Board to be known as the Tasmanian Community Fund Board. (2) The Board is to consist of not more than 6 persons appointed by the Governor on the recommendation of the Treasurer. (3)  One of the persons appointed under subsection (2) is to be appointed by the Governor, on the recommendation of the Treasurer, as chairperson. (4) At least one member of the Board must be a current or former officer of the Department. (5) The Treasurer, other than in respect of the initial appointment of persons to the Board, must not make a recommendation to the Governor under subsection (2) unless he or she has consulted with the Board. (6)  Schedule 1 has effect with respect to the membership and meetings of the Board. 36Functions of Board (1) The functions of the Board are to – (a) provide grants out of the Fund for community purposes as the Board thinks fit; and (b) manage the Fund, in any manner in which the Board thinks fit, so as to maximise the return earned on any money standing to the credit of the Fund having regard to the need to – (i) provide grants out of the Fund; and (ii) exercise reasonable care and prudence so as to maintain the integrity of the Fund; and (c) conduct its operations in an efficient, effective and economical manner. (2)  For the purposes of subsection (1)(a) , grants may be made by the Board for – (a) charitable purposes; and (b) sporting or recreational purposes; and (c) cultural and arts purposes; and (d) educational purposes; and (e) religious purposes; and (f) any other purpose approved by the Treasurer on the recommendation of the Board. (3) In making grants out of the Fund for community purposes, the Board must ensure that the balance of the Fund at the end of each financial year does not fall below an amount that represents the maintenance of the real value of the money transferred into the Fund pursuant to section 34(1) . (4)  Subject to subsection (3) , the Board may distribute, at its sole discretion, the whole or any part of the balance standing to the credit of the Fund. (5) The Board may, at its sole discretion, resolve to accumulate the whole or any part of the balance standing to the credit of the Fund and to invest the whole or any part of that balance, with the intent that the accumulations, subject to subsection (3) , are to be available for subsequent distribution in future financial years. (6) In performing its functions, the Board must – (a) act honestly in all matters concerning the Fund; and (b) ensure that its functions and powers are performed and exercised in the best interests of the Tasmanian community. (7) The Board may make arrangements with the Secretary of the Department for the services of persons employed in the Department to be made available to enable the Board to perform its functions under this Act. (8) Other than employing staff, the Board may do anything necessary or convenient to perform its functions. 37Accounts and records (1) The Board must ensure that proper accounts and records are kept in relation to the transactions and affairs of the Board. (2) As soon as practicable after 30 June in each year, the Board must prepare a statement of accounts, in a form that complies with Australian Accounting Standards, showing the true and correct financial position of the Fund as at that date and the transactions of the Fund with respect to the period of 12 months ending on that date. 38Payment for auditThe Board must pay to the Public Account an amount to be determined by the Treasurer to defray the costs and expenses of any audit conducted by the Auditor-General. 39Costs and expenses of Board (1) All costs and expenses associated with the operation of the Board and the Fund are to be met from the Fund. (2)  For the purposes of subsection (1) , costs and expenses include, but are not limited to – (a) remuneration of Board members; and (b) investment expenses; and (c) legal, accounting, advisory and taxation expenses; and (d) the use of the services of persons referred to in section 36(7) ; and (e) liability for any taxes; and (f) any other costs approved by the Treasurer in writing. 40Liability of members of Board (1) A member of the Board is not personally liable for an honest act or omission in the performance or the purported performance of functions under this Act. (2)  This section does not apply to – (a) wilful misconduct; or (b) wilful neglect; or (c) wilful failure to comply with this Act. 41Annual report of Board (1) The Board must, following the end of each financial year, prepare an annual report containing – (a) a report of its operations during the financial year; and (b) an audited statement of the financial position of the Fund; and (c) a statement of all grants made by the Board from the Fund during the financial year. (2) The Board is to submit the annual report to the Treasurer so as to enable the Treasurer, on or before 30 November in each year, to cause copies of the report to be laid before each House of Parliament. (3)  If the Treasurer is unable to comply with subsection (2) because either House of Parliament is not sitting, the Treasurer must – (a) on 30 November following the end of the financial year – (i) forward copies of the annual report to the Clerk of that House; and (ii) make the annual report available to the public; and (b) within the next 7 sitting days of that House, cause copies of the annual report to be laid before that House. (4) If 30 November in any year is a Sunday or a day that is a bank holiday or a public holiday throughout Tasmania, it is sufficient compliance with this section if, on the next day that is not a bank holiday or a public holiday throughout Tasmania, copies of the annual report are – (a) forwarded to the Clerk of the Legislative Council and the Clerk of the House of Assembly; and (b) made available to the public. PART 6Miscellaneous42State taxes and duties (1)  Instead of the application of any specific provisions of the Stamp Duties Act 1931 to the transactions to be undertaken pursuant to this Act, the Financial Sector Reform (Tasmania) Act 1999 (only in so far as that Act relates to the sale of business deed) or the sale of business deed, the Treasurer, by notice published in the Gazette, must declare the amount of stamp duty which is to relate to those transactions. (2)  The amount declared by the Treasurer under subsection (1) is taken to have been paid by the purchaser as part of the payment made by the purchaser at the vesting time and is to be transferred to the Consolidated Fund as if it were a payment of stamp duty. (3)  No liability arises under the Financial Institutions Duty Act 1986 or Division 6A of Part IV of the Stamp Duties Act 1931 in relation to – (a) the conversion of any account in the name of a customer of the Bank to an account in the name of that customer with the purchaser; and (b) the making of any entry in the books of account of the Bank or the purchaser to give effect to the provisions of the sale of business deed. (4) The purchaser is not liable for the payment of any fee, charge or impost arising under any Act in relation to the vesting of the undertaking of the Bank in the purchaser or in relation to any notice, form, application, lodgment, registration, transfer or alteration of a register consequential on the vesting of the undertaking of the Bank in the purchaser. (5)  A notice referred to in subsection (1) is not a statutory rule for the purposes of the Rules Publication Act 1953 . 43Restraint (1)  Subject to subsection (3) , for a period of 5 years after the vesting time, the Crown, an instrumentality of the Crown or TB No. 1 is not, in this State, to promote, participate in, operate or engage in the business of banking whether on its own account or in partnership or by joint venture. (2)  Subject to subsection (3) , at any time after the vesting time, the Crown, an instrumentality of the Crown or TB No. 1 is not, in this State, to make use of any logos, trademarks or business or corporate names which are the same as, or similar to, those used by the Bank before the vesting time. (3)  Nothing in this section affects any business conducted or activities undertaken under the Tasmanian Development Act 1983 or the Tasmanian Public Finance Corporation Act 1985 . 44DisputesTo avoid doubt, section 61 of the Trustee Banks Act 1985 does not apply to any dispute between the purchaser and any other person. 45Rules of the BankNotwithstanding any written or unwritten law (including this Act), a rule of the Bank does not apply to or otherwise affect any arrangement or relationship between the purchaser and another person (including any arrangement or relationship which became an arrangement or relationship between the purchaser and another person by virtue of this Act or any of the transfer legislation). 46ValidationIf any act or purported act of the Bank, or any entity of which the Bank became the successor, was beyond the power of the entity which performed or carried out or purportedly performed or carried out the act or purported act, the act or purported act is validated to the extent of any invalidity with effect from the time when the act or purported act was first performed or carried out or first purportedly performed or carried out. 47Regulations (1)  The Governor may make regulations for the purposes of this Act. (2)  Regulations under this Act may – (a) authorise any matter to be determined, applied or regulated by any person specified in the regulations; and (b) be made subject to conditions or so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations. (3)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act. (4)  A provision referred to in subsection (3) may, if the regulations so provide, take effect from the commencement of this Act or a later day. 48Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  – (a) the administration of this Act is assigned to the Treasurer; and (b) the department responsible to the Treasurer in relation to the administration of this Act is the Department of Treasury and Finance. 49Repeal of certain Acts (1) At the vesting time, the Trust Bank (Corporatisation) Act 1997 is repealed. (2) On the date which is 3 months after the vesting time, the following Acts are repealed: (a) the Trustee Banks Act 1985 ; (b) the Trust Bank (Arrangements) Act 1991 . (3)  The Treasurer, by notice published in the Gazette, must, as soon as praciticable after the vesting time, specify the date on which the Acts referred to in subsection (2) are repealed. (4)  A notice referred to in subsection (3) is not a statutory rule for the purpose of the Rules Publication Act 1953 . Schedule 1Membership and meetings of Board

Section 35

1.   Term of office (1)In respect of the first appointment of members of the Board – (a) one third of the members are to be appointed for 5 years; and (b) one third of the members are to be appointed for 4 years; and (c) one third of the members are to be appointed for 3 years. (2)In respect of the appointment of members of the Board other than the first appointment referred to in subclause (1) , the members are to be appointed for such term not exceeding 3 years as is specified in their instruments of appointment. (3)Any member of the Board appointed under subclause (1) or (2) is eligible for reappointment from time to time for such term not exceeding 3 years as is specified in his or her instrument of appointment. 2.   Provisions relating to members Where, by or under any Act, provision is made requiring the holder of an office to devote the whole of his or her time to the duties of his or her office, that provision does not operate to disqualify him or her from holding that office and also the office of a member of the Board. 3.   Remuneration, &c., of members (1)A member of the Board is to be paid such remuneration, expenses and allowances as the Governor may determine. (2)The Governor may determine, in respect of a member of the Board employed in an Agency, within the meaning of the Tasmanian State Service Act 1984 , that any payment of remuneration in respect of that member is to be paid to that Agency instead of to that member. 4.   Tasmanian State Service Act 1984 not to apply The provisions of the Tasmanian State Service Act 1984 do not apply to, or in respect of, the appointment of a member of the Board and a member of the Board is not, in his or her capacity as such a member, subject to the provisions of that Act during his or her term of office. 5.   Appointment of substitute to act during absence of member of Board (1)The Governor may appoint any person (including a member of the Board other than the chairperson of the Board) to act in the office of the chairperson or appoint any person to act in the office of the member of the Board other than the chairperson while the chairperson or that member of the Board, as the case may be, is absent from his or her office through illness or any other cause. (2)A member of the Board other than the chairperson is, for the purpose of subclause (1) , taken to be absent from his or her office if the member is acting in the office of chairperson pursuant to that subclause. (3)A member of the Board is, for the purpose of subclause (1) , taken to be absent from his or her office if there is a vacancy in that office which has not been filled in accordance with clause 7 . (4)A person is not concerned to inquire whether or not any occasion has arisen requiring or authorising a person to act in the office of a member of the Board and all things done or omitted to be done by that person while so acting are as valid, and have the same consequences, as if they had been done or omitted to be done by that member. 6.   Vacation of office (1)The office of a member of the Board becomes vacant – (a) when the member dies; or (b) if the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration or estate for their benefit; or (c) if the member is absent from 3 consecutive ordinary meetings of the Board of which reasonable notice has been given to him or her, either personally or in the ordinary course of post, unless on leave granted by the Treasurer or unless, before the expiration of 3 weeks after the last of those meetings, the member is excused by the Treasurer for his or her absence from those meetings; or (d) if the member is convicted in the State of a crime or an offence which is punishable by imprisonment for a period of not less than 12 months, or if the member is convicted elsewhere than in the State of an offence which, if committed in the State, would be a crime or an offence so punishable; or (e) if the member resigns his or her office by writing under his or her hand addressed to the Governor and the Governor accepts the resignation; or (f) if the member is removed from office by the Governor under subclause (2) . (2)The Governor may remove from office a member of the Board if – (a) the Governor is satisfied that the member is unable to perform adequately or competently the duties of his or her office; or (b) the member fails to disclose an interest as required under clause 16 . (3)A member of the Board must not be removed from office otherwise than in accordance with subclause (2) . 7.   Filling of casual vacancies On the occurrence of a vacancy in the office of a member of the Board otherwise than by the expiration of the term for which the member was appointed, the Treasurer may, after consulting with the Board, appoint a person to the vacant office for the balance of the member’s term of office. 8.   Validity of proceedings, etc. (1)An act or proceeding of the Board or of any person acting pursuant to any direction of the Board is not invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Board. (2)All acts and proceedings of the Board or of any person acting pursuant to any direction of the Board are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Board or that any person was disqualified from acting as, or incapable of being, a member of the Board, as valid as if the member had been duly appointed and was qualified to act as, or capable of being, a member, and as if the Board had been fully constituted. 9.   Presumptions In any matter proof is not required of – (a) the constitution of the Board; or (b) any resolution of the Board; or (c) the appointment of any member of the Board; or (d) the presence of a quorum at any meeting of the Board. 10.   Convening of meetings of Board Meetings of the Board may be convened by the chairperson of the Board or by any 3 members of the Board. 11.   Presiding at meetings (1)The chairperson is to preside at all meetings at which he or she is present. (2)If the chairperson is not present at a meeting of the Board, a member elected by the members present is to preside at that meeting. 12.   Quorum and voting at meetings (1)Two thirds of the members of the Board form a quorum at any meeting of the Board. (2)Questions arising at a meeting of the Board are to be determined by a majority of votes of the members of the Board present and voting. (3)In the event of an equality of votes, the chairperson or other member presiding at a meeting of the Board may exercise a second or casting vote. (4)At a meeting of the Board where a member is excluded from being present and taking part in the consideration and decision of the Board in relation to a matter, a quorum for the purposes of considering and making a decision in relation to the matter is constituted by the number of members specified as constituting a quorum in subclause (1) less the number of members so excluded. 13.   Telephone conferences, &c. (1)The Board may permit members to participate in a particular meeting or all meetings by – (a) telephone; or (b) closed circuit television; or (c) any other means of communication approved by the Board. (2)A member who participates in a meeting under a permission granted under subclause (1) is taken to be present at the meeting. 14.   Resolutions of Board A proposed resolution of the Board – (a) of which notice is given to all members of the Board in accordance with procedures determined by the Board; and (b) in which all members of the Board express their concurrence in writing – is taken to be a decision of the Board. 15.   Minutes The Board is to keep minutes of its meetings. 16.   Disclosure of interests (1)If – (a) a member has an interest, pecuniary or otherwise, in a matter being considered, or about to be considered, by the Board; and (b) the interest could conflict with the proper performance of the member’s duties in relation to consideration of the matter – the member must, as soon as practicable after the relevant facts come to the member’s knowledge, disclose the nature of the interest to the Board.

Penalty:  Fine not exceeding 10 penalty units or a term of imprisonment not exceeding 3 months, or both.

(2)A disclosure under subclause (1) is to be recorded in the minutes of the meeting and, unless the Board otherwise determines, a member who makes a disclosure under subclause (1) in respect of a matter must not – (a) be present during any deliberation of the Board in relation to the matter; or (b) take part in any decision of the Board in relation to the matter. (3)For the purpose of making a determination under subclause (2) , the member to whom the determination relates must not – (a) be present during any deliberation of the Board for the purpose of making the determination; or (b) take part in making the determination. 17.   General procedure The procedure for the calling of, and for the conduct of business at, meetings of the Board is, subject to this Schedule, to be as determined by the Board.

[Second reading presentation speech made in:

House of Assembly on 18 NOVEMBER 1999

Legislative Council on 24 NOVEMBER 1999]