Western Australian Numbered Acts Western Australian Numbered Acts Schedule 3 is
repealed and the following Schedules are inserted instead —
“
Schedule 3 -- Provisions to be included in constitution of subsidiaries
[s. 22]
(1) The Authority is
not to sell or otherwise dispose of shares in the subsidiary other than as
approved by the Minister.
(2) The Minister is
empowered to execute a transfer of any shares in the subsidiary held by the
Authority.
(1) The directors of
the subsidiary are to be appointed by the Authority, but no such director may
be appointed except with the prior written approval of the Minister.
(2) All decisions
relating to the operation of the subsidiary are to be made by or under the
authority of the board of the subsidiary in accordance with the statement of
corporate intent of the Authority and the subsidiary.
(3) The board of the
subsidiary is accountable to the Minister in the manner set out in Part 3A and
in the constitution of the subsidiary.
Shares may not be
issued or transferred except with the prior written approval of the Minister.
(1) The subsidiary may
not form, participate in the formation of, or acquire any subsidiary without
the prior written approval of the Minister given with the Treasurer’s
concurrence.
(2) The subsidiary
must ensure that the constitution of each of its subsidiaries at all times
comply with this Act.
(3) The subsidiary
must, to the maximum extent practicable, ensure that each of its subsidiaries
complies with its constitution and with the requirements of this Act.
Schedule 3A -- Financial administration and audit
[s. 40(1)]
(1) In this Schedule,
unless the contrary intention appears —
"financial year" has the meaning given by
clause 23(1);
“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 those
terms in Part 1.2 of the Corporations Act .
Division 2 — Financial records
2. Obligation to keep financial records
( cf. s. 286 Corporations Act
)
(1) The Authority 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 Authority 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 Authority must
give the Treasurer written notice of the place where the information is kept.
(4) The Minister may
direct the Authority 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.
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 1 — Annual financial reports and directors’
reports
6. Preparation of annual financial 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
Authority 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.
(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 Authority 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 Authority; and
(b) if
consolidated financial statements are required under
clause 7(2)(d) — the financial position and performance of the
consolidated entity of which the Authority is part.
(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 Authority 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.
(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 Authority and the
results of those operations;
(b) give
details of any significant changes in the Authority’s state of affairs
during the year;
(c)
state the Authority’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 Authority’s operations in future
financial years;
(ii)
the results of those operations in future
financial years; or
(iii)
the Authority’s state of affairs in future
financial years;
(e)
refer to likely developments in the Authority’s operations in future
financial years and the expected results of those operations; and
(f) if
the Authority’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 Authority’s
performance in relation to environmental regulation.
(2) If consolidated
financial statements are required under clause 7(2)(d), the report must
be on the consolidated entity of which the Authority 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
Authority; or
(b) if
consolidated financial statements are required under clause 7(2)(d)
— the consolidated entity or any entity (including the Authority) 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;
(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 Authority at any time
during or since the end of the year and the period for which they were a
director.
(2) 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.
(3) Details do not
have to be included in the directors’ report for a financial year if
they are included in the financial report for that financial year.
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 senior executives of the Authority;
(b)
discussion of the relationship between such policy and the Authority’s
performance; and
(c)
details of the nature and amount of each element of the emolument of each
director and each of the 5 named officers of the Authority receiving the
highest emolument.
14. Audit of annual financial report
( cf. s. 301 Corporations Act )
The Authority must
have the financial report for a financial year audited by the Auditor General
in accordance with Subdivision 2 and clauses 33 and 34 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 Authority has kept financial records sufficient to enable a
financial report to be prepared and audited; and
(d)
whether the Authority has kept other records and registers as required by this
Schedule.
16. Auditor General’s report on annual
financial report
( cf.
s. 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 financial report.
(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 Authority; 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
Authority must —
(a)
allow the Auditor General access to the books of the Authority; 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 Authority has
to prepare consolidated financial statements, a director or officer of a
controlled entity must give the Authority all information requested that is
necessary to prepare the consolidated financial statements and 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) Any information,
explanation or other assistance required under subclause (1)(b) is to be
given at the expense of the Authority.
21. Controlled entity to assist the Auditor
General
( cf. s. 323B
Corporations Act )
If the Authority 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 Authority
when its financial report is being prepared or audited.
Subdivision 4 — Financial years of the Authority and the entities
it controls
23. Financial years
( cf. s. 323D Corporations Act )
(1) The financial year
of the Authority is the 12 month period ending on 30 June.
(2) Where the
Authority 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.
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 Authority 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).
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 Authority, 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
Authority;
(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 Authority 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 or dealt with under
section 45A within 14 days after the order is made.
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.
Division 6 — Sanctions for contraventions of this Schedule
30. Compliance with Divisions 2 and 3
( cf. s. 344 Corporations Act
)
(1) A director of the
Authority must take all reasonable steps to comply with, or to secure
compliance with, Divisions 2 and 3.
(2) A person who
contravenes subclause (1) with intent to deceive or defraud the Minister
or the Treasurer or creditors of the Authority, is guilty of a crime and is
liable to a fine of $20 000 or imprisonment for 5 years, or both.
Summary conviction penalty: A fine of $12 000
or imprisonment for 3 years, or both.
(3) In
subclause (2) —
"summary conviction penalty" has the same meaning
as in section 5 of The Criminal Code .
(4) If
subclause (2) does not apply a person who contravenes subclause (1)
is liable to a fine of $5 000.
(5) Subclause (1)
does not apply to clause 17, 18, 20 or 21.
31. Deadline for reporting to the Minister
( cf. s. 315 Corporations Act
)
(1) In
subclause (2) —
“the prescribed day” means the fifth
working day after receipt by the directors under clause 16 of the Auditor
General’s report.
(2) The Authority must
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 25BA.
32. Annual financial reporting to the Minister
( cf. s. 314
Corporations Act )
The annual report of
the Authority under section 25BA is to contain the following documents
—
(a) the
financial report for the year;
(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.
(1) If the Auditor
General cannot complete the audit of the Authority 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 or dealt with under section 45A 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 Authority.
34. Powers and duties of the Auditor General
(1) If the Auditor
General in the course of the performance of duties as auditor of the Authority
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,
the Auditor General is
to forthwith report the matter to the Minister in writing.
(2) 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 Authority as if
it were a statutory authority named in Schedule 1 to that Act.
(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), clause 28(5)
applies to the memorandum evidencing the extension as if it were an order
under clause 28(1).
”.