Page 4073 - Week 11 - Wednesday, 16 Sept 2009
But boards have duties as well. I am sure the Treasurer could correct me if this is not the correct interpretation but section 16(1)(f) of the Territory-owned Corporations Act states that a territory-owned corporation or a subsidiary must not, without the prior written consent of the voting shareholders:
… acquire, dispose of, mortgage, or give security over, a significant asset …
This relates to acquiring a significant asset. According to Mr Corbell during question time, cabinet approved it. But the question is: is cabinet entitled to approve it because the act actually says the shareholders must give the written consent? So who is in charge here? Is it that the cabinet does not trust the two shareholders or is it that the two shareholders are seeking to shift the blame?
At the end of the day, paragraph (4) of Mr Corbell’s amendment notes that the management of the project is being undertaken by the board of Actew Corporation, consistent with the provisions of the Territory-owned Corporations Act. The question is: have they been consistent with the Territory-owned Corporations Act?
It is in paragraph (4) of Mr Corbell’s amendment—the Mark Sullivan memorial carry-the-blame amendment—that we see a pattern here. Yet again we have two ministers who refuse to take responsibility for the management of this project. They are responsible under Westminster—and the Chief Minister is very keen at quoting Westminster—to this body for the good accounting of those areas in their portfolios. It will be interesting to see which minister is actually responsible for this whole sad, sorry saga.
The other interesting thing is that the board has a responsibility under section 16A. It has an obligation to tell the shareholders about significant events. Subsection (1) of 16A states:
This section applies if the directors of a territory-owned corporation or subsidiary become aware of any significant event that affects, or seems likely to affect—
(a) the value of the corporation or subsidiary; or
(b) a significant part of the assets of the corporation or subsidiary;
(c) the performance of the corporation …
I would be saying that a blow-out from $145 million to $363 million would certainly affect the value of the corporation. It is going to affect a significant part of the assets of the corporation and it will, indeed, affect the performance of the corporation.
So the question is: when was the board first given the number 363 and when did they first tell the shareholders, as they are obliged to under section 16A? Subsection (2) of section 16A states:
The directors of the corporation or subsidiary must—