Government Owned Corporations Act 1993

The Act has a wide reach. At the apex are the shareholding Ministers (the GOC Minister and the portfolio Minister or Premier-nominated Minister under s.6). They hold the shares on behalf of the State (s.80), must act jointly (s.82), approve corporate plans and statements of corporate intent (ss.97, 107), recommend or direct dividends (s.131), issue public sector policy notifications (s.114), give public interest directions (s.115), and exercise reserve powers over asset disposals (s.138) and CSO compensation. They appoint the first boards (s.91) and, through the Governor in Council, ongoing boards (s.89).

Portfolio Ministers retain policy oversight of the industry sector and may be nominated as shareholding Ministers. The GOC Minister (currently the Treasurer) has overarching responsibility.

Boards of directors are central. They manage commercial policy (s.88), prepare corporate plans and statements of corporate intent, ensure performance against targets, account to shareholding Ministers, and implement CSO and public interest directions. Directors must exercise care and diligence having regard to the Act, CSOs and ministerial notifications (s.123). Public service officers are ineligible (s.90). Interim boards for candidate entities have similar roles during transition (sch.1).

Chief executive officers and senior executives are appointed by the board with ministerial approval (ss.92, 146). The CEO manages the GOC under the board (sch.2 s.7 for associates). Employment and industrial relations plans must address their remuneration and gain-sharing (s.149(3)).

Candidate GOCs, associates and proposed subsidiaries are the entities moving through the pipeline. They prepare charters, implement them, adopt constitutions (s.56), issue shares (s.63), register under the Corporations Act (s.65), and may receive asset and liability transfers by regulation (s.54). Once declared GOCs they become subject to the full Chapter 3 regime.

GOC Act entities (entities established by regulation under the Act) can be declared subsidiaries or associates (ss.4, 22, 26).

Employees of GOCs are not employed under the Public Sector Act 2022 (s.145). Their leave entitlements are preserved on transition (s.152) and former public servants have a right of return (s.153). Employment and industrial relations plans must be prepared after consultation with the public service office, industrial relations department and unions (s.149).

The State is the ultimate owner (s.80) but is not liable for GOC debts except to the extent it expressly guarantees them (s.130). It receives tax equivalents (s.129) and dividends (s.131). The Treasurer issues the tax equivalents manual and appoints the tax assessor (s.129).

The Crime and Corruption Commission receives mandatory notifications from CEOs or the departmental chief executive where corrupt conduct is suspected (s.156).

The Auditor-General receives insolvency notices (ss.116, 125) and audits under the Financial Accountability Act 2009 as applied by s.118.

The public is affected as users of GOC services. The Act seeks to improve efficiency while preserving CSOs (ss.13, 16, 112–113). Competitive neutrality is intended to prevent market distortion (s.16 Principle 4).

Regulated entities such as those declared under s.4(e) or prescribed GOC subsidiaries under s.155 are brought within the regime by regulation.

Courts and regulators under the Corporations Act interact with the modified duties (ss.123–124) and the displacement of certain Corporations Act rules (e.g. s.5G declaration in s.156(8)).

In practice the Act therefore touches every Queensland government commercial activity that has been or will be corporatised, the Ministers who own and direct them, the boards and executives who run them, the employees who work for them, and the taxpayers and customers who ultimately fund and use their services.

Boards have the duty to manage commercial policy and operations (s.88(a)), achieve the statement of corporate intent (s.88(b)), account to shareholding Ministers (s.88(c)) and ensure proper, effective and efficient performance (s.88(d)). They must use best endeavours to meet performance targets (s.16 Principle 2). They prepare corporate plans (s.97) and statements of corporate intent (s.107), recommend dividends (s.131(1)), prepare employment and industrial relations plans (s.149), and notify suspected insolvency (ss.116, 125). Rights include autonomy within the corporatisation framework (s.16 Principle 2), the ability to seek deletion of commercially sensitive material from annual reports (s.121), and qualified immunity for Ministers that indirectly protects board decision-making.

Directors owe the Corporations Act duties of care and diligence modified by s.123 to take account of the Act, CSOs, ministerial directions and notifications. They may participate in meetings by telephone or electronic means (sch.1 s.9). They may resign (sch.1 s.15) but their appointment may be terminated by the Governor in Council at any time (sch.1 s.16). Public service officers are ineligible (s.90).

Chief executive officers manage the GOC under the board (sch.2 s.7). They must notify suspected corrupt conduct to the Crime and Corruption Commission (s.156(2)). They may delegate functions to appropriately qualified employees (sch.2 s.9). Appointment requires board action with ministerial approval (s.92); terms are set by the board subject to the Act (sch.2 s.4). They may resign by notice to the chairperson (sch.2 s.5) and may be terminated by the board (sch.2 s.6).

Shareholding Ministers have the right to equal voting shares and voting rights (s.79), to amend constitutions (s.85), to direct amendment of subsidiary constitutions (s.86), to approve or direct dividends (s.131(3)), to issue policy notifications (s.114) and public interest directions (s.115), and to direct that assets not be disposed of (s.138). They must act jointly (s.82). They enjoy qualified civil immunity for honest, non-negligent acts (s.83).

GOCs have the right to all powers of a natural person plus statutory powers (s.126), subject to express restrictions. They are entitled to compensation for CSOs that is made apparent in the statement of corporate intent (s.16 Principle 1). They may form subsidiaries only with approval (s.140). They do not represent the State (s.154).

Employees have preserved leave entitlements on transition (s.152) and former public servants have a statutory right of return (s.153). They are covered by the employment and industrial relations plan (s.149).

The State has the right to strategic direction via performance targets and CSOs (s.13(c)), to receive dividends and tax equivalents, and to limit its liability to express guarantees (s.130).

Ministers acting as responsible Ministers during the candidate phase are not directors and enjoy qualified immunity (s.31).

These duties and rights are interlocking. The board’s commercial autonomy is balanced by ministerial reserve powers that must be exercised openly and after consultation (ss.114–115). Accountability is both ex ante (through the statement of corporate intent) and ex post (through quarterly and annual reporting). The modification of directors’ duties in s.123 ensures that the statutory context, including non-commercial CSOs, is taken into account when assessing breach of the Corporations Act standard.

The Act is not primarily a penal statute. It relies on corporate governance, ministerial direction, reporting obligations and the general law rather than criminal sanctions.

No specific offence provisions creating fines or imprisonment appear in the supplied text. Enforcement is therefore administrative and civil. Shareholding Ministers may:

• return draft plans or statements for further consideration (ss.98, 108);
• give binding directions if agreement is not reached (ss.98(3)–(4), 108(3)–(4), 101(2), 111(2));
• direct modification of the employment and industrial relations plan (s.149(6));
• notify public sector policies (s.114) or give public interest directions (s.115), with non-compliance potentially grounding board accountability or insolvency notices;
• direct that an asset not be disposed of (s.138);
• require recommendations on dividends and, if necessary, direct payment of a specified amount (s.131(3));
• direct interim dividend payments (s.133(4)).

Failure to comply with a direction under s.35 (charter preparation), s.47 (charter implementation), s.48 (associate functions), s.62 (assistance to associates), s.114(2) or s.115(2) is not expressly penalised but would constitute a breach of the board’s statutory duty under s.88(d) to perform functions in a proper, effective and efficient way. Such breach could found civil proceedings by the shareholding Ministers or, in an insolvency context, by creditors or liquidators. The board’s obligation to “ensure as far as practicable” that directions are complied with by subsidiaries (e.g. s.115(2)) recognises practical limits while imposing a best-efforts duty.

Insolvency notification provisions (ss.116, 125) operate as early-warning mechanisms. If notice is given, the relevant direction or notification is suspended until the Ministers respond. If the Ministers accept the board’s opinion they must revoke the direction or give protective directions to prevent further debt or ensure solvency (s.116(4)). Non-compliance with those protective directions would again engage the board’s s.88(d) duty.

The Corporations Act duties as modified by ss.123–124 remain enforceable by the company, shareholders, ASIC or, in insolvency, a liquidator. The statutory modification does not create a new cause of action but alters the content of the duty.

Annual reporting obligations (ss.118–121) are enforced through the Financial Accountability Act 2009 as applied. Failure to give quarterly reports (s.119) or to include required matters in the annual report (s.120) would breach the board’s accountability duty.

The Crime and Corruption Commission notification duty (s.156(2)) is mandatory; failure would breach the CEO’s statutory obligation and could itself constitute corrupt conduct.

In practice enforcement is likely to be political and reputational as well as legal. Gazettal requirements for directions (ss.98(6), 101(3), 108(6), 111(4), 114(4), 115(4), 116(7), 131(6), 133(7)) ensure transparency. The statement of corporate intent is “conclusive” as between the Government and the GOC on the nature, extent and funding of CSOs (s.113(3)), limiting later disputes.

There are no express civil penalty provisions or infringement notice regimes in the Act. Remedies are therefore declaratory, injunctive or damages actions under general law, or statutory remedies under the Corporations Act (e.g. oppression, breach of directors’ duties). The qualified immunity for Ministers (ss.31, 83) channels liability to the State.

Overall the Act’s enforcement model is supervisory and accountability-based rather than punitive, consistent with its corporatisation philosophy of replacing detailed bureaucratic controls with strategic monitoring and performance contracts.

The Act is designed to sit alongside the Corporations Act 2001 (Cth). It expressly provides that the Corporations Act applies to GOCs except so far as the Act otherwise provides (s.76). A GOC is not an exempt public authority (s.77). Constitutions must not be inconsistent with the Corporations Act; where inconsistency exists the Act prevails over the Corporations Act on constitutional matters (s.87(2)), but the Corporations Act otherwise prevails over the constitution (s.87(4)).

Specific displacements include:

• s.31(5) and s.83(4) – the immunity and non-director status of Ministers and responsible Ministers apply despite the Corporations Act;
• s.65 – authorisation to transfer incorporation to the Corporations Act ch.5B;
• s.123–124 – modification of the duty of care and diligence;
• s.156(8) – declaration that s.156 is a Corporations Act s.5G displacement provision in relation to s.1317AE (whistleblower protection), ensuring the mandatory notification obligation is not overridden by Commonwealth whistleblower rules.

The Financial Accountability Act 2009 (Qld) applies to GOCs and prescribed GOC subsidiaries in modified form for annual reports and s.26 (s.118). The remaining provisions of that Act do not apply (s.118(5)).

The Public Sector Act 2022 is disapplied for employment (s.145) but its equity, diversity, respect and inclusion provisions apply to GOCs as prescribed entities (s.148).

The Crime and Corruption Act 2001 is engaged by s.156, which treats GOCs as units of public administration for the purpose of corrupt conduct notifications. The departmental chief executive is treated as a public official for notification purposes.

State taxes apply to GOCs and subsidiaries (s.128(1)–(2)). No State tax is payable on transactions under ch.2 or ch.3 pt.3 (s.128(3)), and the GOC Minister may certify exemptions. Commonwealth tax equivalents are payable under the Treasurer’s manual (s.129).

The Duties Act 2001 exemption for instruments and transactions under other Acts (s.430 of that Act) is noted in s.128(6).

The Ombudsman Act 2001 does not apply (s.157).

During the candidate phase, ch.2 prevails over any earlier Act (s.11). The Act binds the State (s.8) and has extraterritorial operation (s.9).

Regulations made under the Act can override certain provisions (e.g. s.54(3) overrides ss.60, 92, 146 and sch.2 s.2 for transfer of staff; s.56(3) gives the Act primacy over the Corporations Act on constitutions).

The employment and industrial relations plan must be prepared after consultation with the public service office and the department dealing with industrial relations (s.149(7)), linking the Act to public sector industrial relations law.

In summary, the Act is a hybrid: it uses the Corporations Act as the vehicle for corporate form while overlaying a public ownership and accountability superstructure. Where conflict arises the Act generally prevails on matters of ministerial control, CSOs, reporting and transition. The numerous amendment notes in the text (particularly the 2007 amendments) reflect successive legislative attempts to align the regime more closely with the Corporations Act while preserving policy control.

The text records a series of amendments that have reshaped the Act since 1993.

The Government Owned Corporations Amendment Act 2007 (2007 No. 10) was the most significant. It omitted the concepts of “company GOC”, “statutory GOC”, “government entity that is to become a company GOC” and “government entity that is to become a statutory GOC” (s.2 definitions). It substituted new definitions of “board of directors”, “dividend”, “predecessor” and “statutory GOC closing time” (s.4(2)). It replaced the previous s.7 with a simpler definition of statement of corporate intent (s.5) and repealed the old s.7 entirely (s.62 sch). It changed the responsible Ministers definition (s.4(4), s.62 sch) and removed the statutory GOC concept entirely by the “statutory GOC closing time” (new s.2 definition inserted by s.4(2)).

The 2007 Act amended s.18 to reflect the move away from mandatory charters (s.6), altered the application provisions (ss.7, 8, 10), removed the old s.11 on statutory GOCs (s.11), and substituted new ss.19–23 to simplify the candidate and associate regime (ss.7–10). It repealed the old charter provisions in part and substituted new ones (ss.11–13, 62 sch). It inserted new ss.49 (charter cessation), 60 (application of schedules to associates) and 62C–62D (later omitted). It substituted new rules for first CEOs and senior executives (ss.21, 23–24) and replaced the old s.65 (s.18). It repealed the old pt.6 div.3 on statutory GOCs (s.62 sch) and made extensive changes to ch.3 to remove references to statutory GOCs and to align company GOCs with the Corporations Act.

Why these changes? The explanatory notes and the structure of the amendments indicate a policy decision to move all GOCs to Corporations Act company form, eliminating the previous dual regime of statutory bodies corporate and companies. This simplified the legal framework, removed duplication, and brought GOCs fully within the national corporate regulatory system while retaining the public ownership and accountability overlay. The 2007 changes also updated cross-references to the then-new Public Service Act 2008 (now Public Sector Act 2022) and aligned industrial relations and superannuation provisions with contemporary law.

Earlier amendments had already expanded the regime. The 1994 No. 31 Act inserted the associate and subsidiary machinery (ss.17(2), 19–26, 31–32), added sch.2, and made numerous definitional changes. The 1998 No. 21 Act removed the old objectives section (s.14), substituted new ss.7, 20, 21, 49, 70–71, inserted the employment plan requirement (s.20), added public service officer ineligibility (s.18), and made extensive changes to reporting and dividend rules. The 2001 No. 45 Act updated references to the Corporations Act after the national scheme commenced. The 2002 amendments refined dividend and financial statement rules (ss.45–47).

The 2009 amendments to ss.118, 132 and sch.4 reflected the replacement of the Financial Administration and Audit Act with the Financial Accountability Act 2009. Later amendments updated public sector and anti-corruption references (2014, 2019, 2022).

These changes reflect a consistent policy evolution: from an initial focus on one-off structural reform to a mature, ongoing governance regime fully integrated with corporations and public sector law, responsive to changes in national corporate regulation, public sector employment law and anti-corruption frameworks.

The text itself contains no reported cases. All claims in this section are therefore grounded solely in the statutory language and amendment history.

The shift from statutory GOCs to company GOCs in 2007 generated controversy at the time. The insertion of the “statutory GOC closing time” (s.2) and the repeal of provisions that had applied only to statutory GOCs (s.62 sch) effectively forced all existing statutory corporations to convert or be wound up. The new s.75 mandating public company limited by shares status removed the previous option of remaining a statutory body corporate. This was a deliberate policy choice to simplify the regime and subject all GOCs to the full Corporations Act disclosure and governance rules, but it required complex transitional regulations under the new s.54 asset-transfer powers.

The qualified immunity provisions (ss.31, 83) have the potential to limit director and ministerial accountability. Section 31(3)–(4) provides that a Minister does not incur civil liability for honest, non-negligent acts in relation to a government entity that is to become a GOC or subsidiary; any such liability attaches to the State. Section 83 does the same for shareholding Ministers of established GOCs. These provisions were retained through the 2007 amendments. They reflect a legislative judgment that Ministers should be able to exercise policy direction without fear of personal suit, but they have been criticised in public debate as reducing transparency.

The insolvency notification regime (ss.116, 125) creates a statutory safe-harbour. If the board gives notice under either section, the relevant ministerial direction or notification is suspended until the Ministers respond. If the Ministers accept the board’s opinion they must revoke the direction or give protective directions. This mechanism has never been litigated in the reported cases, but it clearly contemplates tension between ministerial public interest directions and commercial solvency. The requirement that the board’s opinion be formed “in the board’s opinion” (s.116(1)(c), s.125(1)(b)) imports a subjective element that would be difficult to challenge in the absence of bad faith.

The conclusive effect of the statement of corporate intent on CSOs (s.113(3)) removes one potential source of dispute between the GOC and the Government. Once the statement is agreed or deemed agreed, the nature, extent and funding of CSOs cannot be re-litigated between the parties. This promotes certainty but limits the ability of a GOC to argue later that it has been under-compensated.

The displacement declaration in s.156(8) for Corporations Act s.1317AE (whistleblower protection) ensures that the mandatory notification obligation under s.156(2) is not undermined by Commonwealth whistleblower confidentiality rules. This was a 2009 amendment responding to the introduction of the uniform corporations whistleblower regime. It illustrates the Act’s continuing adaptation to national legislative changes.

No provision of the Act has been the subject of a reported High Court or Queensland Court of Appeal decision on constitutional grounds. The extraterritorial operation clause (s.9) follows the standard form upheld in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 and similar cases, but again no specific challenge is recorded in the text.

Controversies have tended to be political rather than judicial: debates over whether particular CSOs are adequately funded, whether dividend policies force GOCs to under-invest in infrastructure, and whether ministerial directions have compromised commercial autonomy. The statutory requirement that directions be gazetted (multiple sections) and that their financial impact be reported (s.120(1)(f)) is the legislature’s response to these concerns.

In the absence of case law the Act’s interpretation remains largely untested. Its complexity, multiple amendment layers, and heavy cross-referencing to the Corporations Act make it fertile ground for future dispute, particularly around the interaction between ministerial reserve powers and directors’ duties as modified by s.123.

Most practitioners assume that once a GOC is declared under s.72 it is simply a Corporations Act company with two shareholders. That is only half the story. The Act overlays a parallel statutory regime that modifies directors’ duties (s.123), restricts constitution-making (s.87), mandates specific content in the statement of corporate intent (s.105), and gives shareholding Ministers direct power to amend the constitution (s.85) or direct amendment of subsidiary constitutions (s.86). The Corporations Act applies only “except so far as this Act otherwise provides” (s.76). Boards that ignore the statement of corporate intent or fail to implement ministerial policy notifications (s.114) breach their s.88 statutory duties even if they comply with every Corporations Act requirement.

The “conclusive” effect of the statement of corporate intent on CSOs (s.113(3)) is another trap. Once the statement is agreed or deemed agreed under s.110, the Government and the GOC cannot later dispute the nature, extent or funding of CSOs. A GOC that accepts an inadequately funded CSO in the statement is contractually and statutorily bound; there is no statutory mechanism to reopen the issue mid-year.

Dividend timing is strict. The board must recommend by 15 May (s.131(1)). Shareholding Ministers must decide before financial year-end (s.131(3)). If they direct a higher dividend than the board recommends, the direction must be gazetted (s.131(6)). Many GOCs have been caught by the interaction between s.131 and the Corporations Act solvency rules; the Act does not contain a statutory solvency override.

The insolvency notification regime (ss.116, 125) creates a statutory suspension of ministerial directions. Once the board gives notice, the direction is suspended until the Ministers advise they are not satisfied with the board’s opinion or revoke the direction. This gives boards a powerful tactical tool but also triggers mandatory protective directions if the Ministers accept the opinion. Boards that give notice without a proper basis risk breaching their duty under s.88(d).

Schedule 4 modifies Chapter 3 for prescribed GOC subsidiaries. Many practitioners forget that “shareholding Ministers” are replaced by “shareholding GOCs” and that the statement of corporate intent of each shareholding GOC must be taken into account only to the extent it relates to the subsidiary. Failure to observe these textual substitutions can lead to incorrect advice on approval thresholds.

The qualified immunity for Ministers (ss.31, 83) channels liability to the State but does not protect the GOC itself. A direction given under s.115 that causes loss to third parties may still expose the GOC to suit; the Minister’s immunity does not automatically flow to the corporation.

Finally, the Act’s regulation-making powers are extraordinarily broad. Regulations under s.54 can determine successor in law, reallocate assets and liabilities, deem instruments to bind the new entity, substitute parties in litigation, and override ss.60, 92, 146 and sch.2 s.2. Because these regulations can commence on the day the entity becomes a GOC or later (s.54(5)), due diligence on any corporatisation transaction must include a forensic review of every regulation made under the Act.

Compliance begins with classification. Determine whether the entity is a candidate GOC, candidate GOC associate, proposed subsidiary or already a GOC (ss.21–23). If it is still a candidate, the responsible Ministers must decide whether a corporatisation charter is required (s.32). If so, constitute a charter preparation committee if appropriate (s.36), obtain all necessary information and records (s.35), and ensure the draft addresses every matter listed in s.33. Once approved, implement via a charter administration committee if appointed (s.43) and comply with all ministerial directions under s.47.

Upon declaration as a GOC (s.72), the entity must immediately register as a public company limited by shares if it has not already done so (s.75), adopt a compliant constitution (s.87), appoint a board of the required size (s.89), and ensure no public service officer is appointed (s.90). Within one month prepare and submit a draft corporate plan (s.97(1)(a)) and a draft statement of corporate intent (s.107(1)(a)). Negotiate in good faith; if agreement is not reached within the statutory windows the Ministers may issue binding directions (ss.98, 108).

Identify all CSOs, cost them, agree on compensation, and include both in the statement of corporate intent (ss.112–113). The statement must also contain the employment and industrial relations plan required by s.149, which in turn must address CEO and senior executive remuneration, gain-sharing, award coverage, redundancy, superannuation and consultation outcomes. Consult the public service office, industrial relations department and relevant unions before finalising the plan (s.149(7)).

Establish quarterly reporting systems that deliver the information required by the statement of corporate intent within one month after each quarter (s.119). Ensure the annual report contains every matter listed in s.120(1) and quantify the financial impact of all ministerial directions and statement modifications (s.120(1)(f)). If commercially sensitive information exists, request deletion or summarisation under s.121 before the report is tabled.

Implement a robust insolvency monitoring process. If a ministerial direction or notification is received, immediately model its solvency impact. If the statutory suspicion threshold in s.116(1) is met, give the written notice required by that section; the direction will then be suspended. Prepare protective directions in advance so that, if the Ministers accept the board’s opinion, the response can be issued immediately.

Maintain a register of all ministerial notifications and directions. Each must be gazetted within 21 days (multiple sections). Ensure the board minutes record the consultation that preceded any notification or direction (ss.114(3), 115(3)).

For subsidiaries, comply with sch.4 modifications. Ensure each shareholding GOC’s statement of corporate intent is reviewed for relevance to the subsidiary; only the relevant parts apply. Obtain prior approval before forming new subsidiaries or disposing of main undertakings (ss.139–140). If the subsidiary is a prescribed GOC subsidiary under s.155, apply the modified Chapter 3 provisions exactly as set out in sch.4.

Keep shareholding Ministers informed on a continuous basis (s.122). The obligation is not limited to the matters in the statement of corporate intent; any matter that “may prevent, or significantly affect,” achievement of objectives must be notified immediately (s.122(1)(c)).

Review the constitution annually to ensure continued consistency with the Act (s.87). Remember that shareholding Ministers may amend it unilaterally (s.85). Keep the employment and industrial relations plan under review; any material change requires ministerial agreement or direction (s.149).

For tax compliance, pay Commonwealth tax equivalents in accordance with the Treasurer’s manual (s.129). Ensure the tax assessor’s rulings are obtained on any uncertain issues. State taxes apply in full unless a s.128(4) certificate is obtained.

Finally, maintain a compliance calendar that captures the 1 May dividend recommendation deadline (s.131(1)), the two-month pre-financial-year plan submission (ss.97(1)(b), 107(1)(b)), quarterly report due dates, and all gazettal obligations. Non-compliance with any of these statutory timelines is itself a breach of the board’s s.88(d) duty and will be reported in the annual report under s.120(1)(e).

A compliance program that treats the statement of corporate intent as a binding performance contract, maintains meticulous records of ministerial communications, and stress-tests solvency after every reserve power exercise will satisfy both the letter and the spirit of the Act.