Power Generation Corporation Act 2014

GenCorp: the statutory corporation created by section 5 of the Act. It is a body politic with perpetual succession and powers beyond those of a natural person only as conferred under the Government Owned Corporations Act 2001. GenCorp is the central entity through which the Territory performs electricity generation and related activities.

Government owned corporation: section 6 declares GenCorp to be a Government owned corporation (GOC) for the purposes of the Government Owned Corporations Act 2001. That Act imposes further governance, reporting and accountability obligations, including the roles of a board and a Minister. The Note to section 9 of the Act confirms that under section 50 of the Government Owned Corporations Act 2001, GenCorp has all the powers of a natural person for or in connection with performing its functions, including the power to do all things necessary or convenient.

Agency (employment only): section 7 provides that GenCorp is an Agency for the purposes of the Public Sector Employment and Management Act 1993 but not for any other Act. This means the NT public sector employment framework applies, but GenCorp is not treated as an agency under other legislation, such as the Public Sector Act. The CEO is the Chief Executive Officer of GenCorp under that Act (section 8(1)). An Administrative Arrangements Order cannot nominate GenCorp as an Agency (section 7(2)), so it cannot be moved between government departments by executive order.

Retail restriction period: the statutory bar on GenCorp supplying electricity to a person for that person’s own use. The period begins on the commencement of section 10 and runs for five years, plus any extension declared under section 12. The extension cannot exceed five years and can only be made after the review under section 11 is completed and before the initial five-year period expires. The Minister may also authorise supply to specified persons or classes during the restriction period by Gazette notice (section 10(3)).

Functions: the Act lists ten categories of functions in section 9, from generation and supply through to developing intellectual property, providing profit-making consultancy services, and doing anything GenCorp determines conducive or incidental to those functions. The Note makes clear that section 50 of the Government Owned Corporations Act 2001 expands the capacity to perform those functions. Functions explicitly include acquiring, developing and operating technologies to improve efficiency and providing services necessary for power system security or reliability.

Local government rates exemption: GenCorp land is exempt from rates, charges or taxes under the Local Government Act 2019 (section 13(1)). The exemption does not apply to charges for works carried out or goods/services provided by a council. If GenCorp land is leased to another person, the exemption ceases for the lease period and the lessee becomes liable for rates (section 13(3)), but GenCorp is not liable for them during that period.

Personal liability protection: section 14 provides that an employee or agent of GenCorp is not personally liable for any act or default of that person or GenCorp done or omitted in good faith in the course of the operations of GenCorp or for the purposes of the Act. This shifts risk from individuals to the corporation.

GenCorp itself is the primary subject of the Act. Its establishment, powers, restrictions and protections all flow from the Act. It must comply with the retail restriction, the Ministerial review process, and the employment modifications. Its competitive behaviour is constrained: it cannot retail electricity to end users without Ministerial authorisation or until the restriction period expires.

Energy market participants are affected indirectly. Private electricity generators and retailers face a government-owned generator that is given a statutory prohibition on supplying retail customers during the restriction period, but which also enjoys a significant cost advantage from the local government rates exemption on its land. That exemption lowers GenCorp’s fixed costs compared to private firms that must pay rates. If and when the restriction expires or is lifted by Ministerial authorisation, GenCorp could enter the retail market with that built-in cost advantage, potentially distorting competition.

The Minister for the administering portfolio is given significant discretions: authorising retail supply during the restriction period (section 10(3)); conducting the competition review (section 11); and extending the retail restriction by declaration (section 12). The Minister must table any extension declaration, but the retail authorisation under section 10(3) has no tabling requirement. The Minister’s decision whether to extend the restriction is subject only to the review being completed; the Act gives no criteria beyond the review’s purpose of determining the effect on competition.

Local government councils lose rate revenue on land owned or controlled by GenCorp (section 13(1)). They can still charge for works and services they provide to that land (section 13(2)). If GenCorp land is leased to a private entity, the lessee becomes liable for the rates (section 13(3)), so councils will need to identify lessees and recover rates from them.

Lessees of GenCorp land are affected because they become personally liable for local government rates on that land. The exemption does not pass to them. This is a potentially material financial burden that should factor into lease negotiations and commercial assessments.

Employees and agents of GenCorp benefit from the broad personal liability protection in section 14. They are not personally liable for acts or defaults done in good faith in the course of operations or for the purposes of the Act. This protection is wider than the usual indemnity from a government employer; it removes personal civil liability entirely in those circumstances.

Taxpayers and consumers are indirectly affected. To the extent that GenCorp’s rates exemption and other advantages reduce its costs, that may reduce pressure on electricity prices if GenCorp passes on savings. Conversely, the restriction on retail supply reduces competition in the retail market, which may keep prices higher than they would be with a competitive retail sector. The trade-off is ultimately borne by consumers.

GenCorp’s duty not to supply electricity for a person’s own use during the retail restriction period (section 10(1)) is the Act’s most important duty. It is a statutory prohibition that must be observed, absent Ministerial authorisation or expiry of the restriction period. Breach of this duty may result in GenCorp acting outside its statutory powers (ultra vires). The Act does not specify a penalty, but proceedings could theoretically be brought for a declaration or injunction.

The Minister’s duty to review the operation of the retail restriction before the end of four years from commencement (section 11(1)). The review must determine the effect of the restriction on competition in the generation, retail and wholesale electricity markets (section 11(2)). This is a mandatory duty; failure to conduct the review on time prevents the Minister from later extending the retail restriction period (section 12(2)(a)) and may have other legal consequences.

The Minister’s duty to table an extension declaration in the Legislative Assembly within three sitting days after the Gazette notice is published (section 12(3)). If not tabled, the declaration is of no effect (section 12(4)). This provides a limited procedural safeguard.

GenCorp’s right to recover money due under the Act as a debt in a court of competent jurisdiction (section 16). This includes any amounts payable to it under contracts or otherwise arising from its functions.

GenCorp’s right to use its fixed assets for other purposes (section 9(f)), provided the proper performance of its primary generation-related functions is not affected. This flexibility allows GenCorp to generate additional revenue but carries the risk of cross-subsidisation or inefficient use of assets.

Employees’ right to personal liability protection (section 14) as described above. It is a right not to be personally sued for good faith acts or omissions in the course of duties.

Lessees’ obligation to pay local government rates (section 13(3)(b)(ii)): if GenCorp land is leased, the lessee becomes liable for rates. This is a direct duty to the council, enforceable under the Local Government Act 2019.

The Board’s power to authorise persons to authenticate documents (section 15). A document is sufficiently authenticated without the corporate seal if signed by a person authorised by the board. This simplifies execution of contracts and dealings.

The Act contains no specific criminal offences or civil penalties for breach of its provisions. This is notable. The primary restriction (section 10(1)) is a statutory prohibition on GenCorp, but the Act does not provide a penalty if GenCorp supplies electricity to an end user in breach. The consequence of such a supply would likely be that the transaction is ultra vires and therefore void, leaving GenCorp unable to enforce payment or exposing it to claims by other parties. A competitor or the Minister could seek declaratory or injunctive relief in the Supreme Court to restrain ultra vires conduct. The Act also does not directly create a private right of action for persons harmed by a breach of the retail restriction.

Recovery of money due (section 16) is the only enforcement mechanism expressly created. GenCorp may sue to recover any money due to it under the Act. This is a standard debt-recovery provision and does not impose penalties on third parties.

Consequences of failure by the Minister to conduct the review or table an extension declaration are procedural: the Minister cannot extend the retail restriction without the review being completed (section 12(2)(a)), and an extension declaration that is not tabled is of no effect (section 12(4)). There is no criminal penalty for non-compliance.

Local government rates are enforceable under the Local Government Act 2019 against the lessee of GenCorp land (section 13(3)). That Act contains its own penalty and recovery provisions for unpaid rates. GenCorp is not liable for rates on its own land during the lease period (section 13(3)(b)(i)), so the council’s recourse is against the lessee.

Personal liability protection (section 14) effectively prevents personal actions against employees and agents for good faith conduct. This operates as a defence, not a penalty, and shifts the risk of loss to GenCorp itself or to an injured party. If an employee acts in bad faith, the protection does not apply, and personal liability may arise at common law.

Overall, the enforcement architecture is light. The Act relies primarily on the Minister’s powers, the constraints of ultra vires, and the oversight of the Legislative Assembly through tabling. There is no independent regulator, no licensing condition linked to the Act, and no express power for private parties to enforce the retail restriction.

Government Owned Corporations Act 2001 (NT): This is the foundational corporate governance and accountability regime for GenCorp. Section 6 of the Act declares GenCorp to be a GOC under that Act. Consequently, GenCorp must comply with that Act’s provisions on board appointment and composition, reporting obligations, financial management, Ministerial directions and accountability. The Note to section 9 expressly references section 50 of the Government Owned Corporations Act 2001, which gives GenCorp all the powers of a natural person for performing its functions. The Schedule’s modification of the Public Sector Employment and Management Act 1993 also interacts with the GOC Act: the CEO is subject to the direction of the Board under section 16(5) of that Act (see Note in Schedule item 2(1)).

Public Sector Employment and Management Act 1993 (NT): Section 7 designates GenCorp as an Agency under that Act only, meaning its employees are public sector employees for the purposes of that Act. However, the Schedule makes substantial modifications: sections 22 and 23 of the PSEM Act are repealed in their application to GenCorp. Section 24 is rewritten so that the CEO’s functions are to employ and manage employees for the purpose of enabling GenCorp to perform its functions, rather than the standard CEO functions in that Act. The CEO must uphold the human resource management principle and the performance and conduct principle, but certain other requirements in the original section 24 are omitted. Sections 27 and 28 of the PSEM Act are also repealed in their application to GenCorp. These changes give GenCorp’s CEO a more targeted employment role, tailored to the entity’s commercial functions.

Local Government Act 2019 (NT): Section 13 provides an exemption from local government rates for GenCorp land, but not for charges for works or services. The operational effect depends on the definitions and rating provisions of the Local Government Act 2019. That Act also determines how rates are set and recovered from lessees.

Interpretation Act 1978 (NT): Section 12(5) of the Act applies section 63C of the Interpretation Act 1978 to a declaration extending the retail restriction period as if it were subordinate legislation. This imports the tabling and disallowance regime applicable to regulations, providing a procedural check. The Interpretation Act 1978 also governs the commencement, amendment and repeal of the Act itself.

Administrative Arrangements Act: Section 7(2) prevents an Administrative Arrangements Order from nominating GenCorp as an Agency. This restricts the government’s ability to reassign GenCorp to a different portfolio or treat it as part of the general public service machinery.

The Act was originally enacted as Act No. 14 of 2014, assented on 13 May 2014 and commenced on 29 May 2014 (Gazette S29, 29 May 2014, p 2). The version provided is the reprint as in force at 1 January 2022. The endnotes identify six amending instruments.

Local Government Act 2019 (No. 39, 2019): Part 8.6 commenced 1 July 2022, remaining 1 July 2021 (Gazette S27, 30 June 2021). Section 370 of that Act amended section 13 of the Act, updating the reference from the earlier Local Government Act to the Local Government Act 2019 and substituting the definition of “local government rates”. This was a consequential amendment following the consolidation of local government legislation.

Statute Law Revision Act 2020 (No. 26, 2020): Received assent 19 November 2020 and commenced 20 November 2020 (section 2). This Act made formal amendments of a general nature, including standardising references and correcting typographical errors across various NT legislation. The endnotes indicate it affected provisions of the Act, but not the substantive policy.

Local Government Amendment Act 2021 (No. 15, 2021): Assented 25 May 2021, commenced 26 May 2021 (section 2). This further amended section 13 of the Act, likely to harmonise with amendments to the Local Government Act 2019.

Interpretation Amendment Act 2021 (No. 28, 2021): Assented 15 December 2021, commenced 1 January 2022 (section 2). Section 20 amended section 12 of the Act to replace a reference to section 63B of the Interpretation Act 1978 with section 63C, presumably to reflect a renumbering or substitution in that Act.

Interpretation Legislation Amendment Act 2018 (No. 22, 2018): The endnotes state that general formal amendments were made by this Act to sections 3, 6, 7, 8, 9, 12, 13 and the Schedule. These amendments did not change substance.

No other changes are noted. The retail restriction period under section 10 has presumably run its initial five years from 29 May 2014 to 29 May 2019, with the potential for extension by declaration. Whether a declaration was made is not discernible from the Act text alone; the reprint does not include any such declaration.

The source text does not mention any litigation arising under or relating to the Power Generation Corporation Act 2014. The endnotes contain no references to court decisions, and the Act’s provisions do not create private rights of action or express civil penalties that would typically generate litigation. The absence of litigation is consistent with the Act’s nature as an establishment and governance statute rather than a prescriptive regulatory code.

The retail restriction in section 10 and the local government rates exemption in section 13 might theoretically be challenged for inconsistency with Commonwealth competition law (e.g. the Competition and Consumer Act 2010 (Cth)), but the Act itself binds the Crown in right of the Territory (section 4), and the exemption from rates applies only to GenCorp land. There is no known case law on this point reported in the source.

The only conceivable area for dispute would be ultra vires actions by GenCorp (supplying electricity in breach of the restriction) or a failure by the Minister to conduct the review. Neither is recorded in the source. The Schedule’s modifications to the Public Sector Employment and Management Act 1993 could give rise to employment disputes, but the Act itself does not create cause of action; any litigation would be under that Act or general law.

The absence of litigation may also reflect that GenCorp has operated within the statutory framework without controversy, or that disputes have been resolved internally or by the Minister without court proceedings. A thorough legal search beyond the source text would be required to confirm, but on the source provided, there is no litigation history to report.

The retail restriction period can be extended by Ministerial declaration without new legislation. Section 12 allows the Minister to declare an extension of up to five years provided the section 11 review is completed. This is a significant executive power. A person doing business in the NT electricity market should not assume the restriction will expire after five years; it could continue for up to ten years, or potentially longer if one declaration is made for five years and then the Act remains unchanged. The only safeguards are the review requirement and tabling, but the Minister is not obliged to act on the review’s findings in any particular way.

No criteria guide the Minister’s decision whether to extend. Section 12 only requires the review to be completed; it does not require the Minister to form a view that competition is adequately protected or that extension is necessary. A Minister could extend the restriction even if the review found it has harmed competition.

GenCorp’s rates exemption is a competitive subsidy with no expiration. Unlike the retail restriction, the exemption from local government rates has no sunset. It applies indefinitely to GenCorp land. This gives GenCorp a permanent cost advantage over private generators and retailers that must pay rates. If GenCorp later enters the retail market after the restriction period, it will do so with that advantage already in place.

The rates exemption shifts to lessees, not to tenants or licensees. Section 13(4) defines “GenCorp land” as land owned by or under the care, control and management of GenCorp. If land is leased, the lessee pays rates. But care, control and management can exist in forms other than leasehold (e.g. licences). The provision catches only leases; other occupancy arrangements might still result in the council losing rate revenue or the occupant being non-liable.

Personal liability protection for employees is broad but ambiguous. Section 14 protects employees and agents from personal liability for “any act or default of that person or GenCorp done or omitted to be done in good faith in the course of the operations of GenCorp or for the purposes of this Act”. The phrase “or default of that person or GenCorp” could protect an employee from liability for GenCorp’s defaults, not just their own. It also covers omissions. The meaning of “good faith” is not defined; it may be satisfied by a subjective belief that the conduct is lawful, even if objectively negligent. This is generous protection and could limit the ability of third parties to sue employees individually for negligent acts.

GenCorp can use its fixed assets for other purposes (section 9(f)). This means a power station or transmission line could be used for non-electricity functions, for example data processing, telecommunications, or advertising if it does not affect performance of the primary function. This flexibility could be used to create revenue streams that cross-subsidise electricity operations, but it also creates a risk of mission creep and potential conflict with private providers of those other services.

No offence or penalty for breach of the retail restriction. The Act does not say what happens if GenCorp sells electricity to retail customers in breach. This creates legal uncertainty. A contract entered in breach might be unenforceable by GenCorp or void for illegality. A competitor may struggle to prove damages from a transaction that is not expressly forbidden by a penalties provision.

The Act does not reserve power to direct GenCorp. Other than through the Government Owned Corporations Act 2001 and Ministerial authorisations under section 10(3), the Minister does not have a direct power under this Act to control GenCorp’s operations. The board of GenCorp, appointed under the GOC Act, has the authority to direct the CEO. A Minister who wants to influence GenCorp’s commercial conduct must rely on the GOC Act regime or the power to amend the Act.

For GenCorp: The primary compliance obligation is to ensure no supply of electricity to a person for that person’s own use occurs during the retail restriction period, unless the Minister has authorised it in writing by Gazette notice. GenCorp should maintain internal controls to distinguish wholesale supply (which is permitted) from retail supply. It should also monitor whether the Minister has extended the restriction period under section 12. If GenCorp intends to enter retail, it should either wait for the expiry of the restriction period and any extensions, or seek Ministerial authorisation. The board must ensure that any authorisation is gazetted and that reliance on it is documented.

GenCorp must also adhere to the modifications to the Public Sector Employment and Management Act 1993. The CEO’s employment and management function is limited to what is necessary to enable GenCorp to perform its functions, and must be exercised subject to board direction (Schedule item 2). The CEO cannot, for example, exercise certain standard functions provided by sections 22, 23, 27 and 28 of that Act, as they are repealed for GenCorp. The board should implement policies that define the CEO’s authority consistently with the Schedule.

For local government rates, GenCorp should identify all land it owns or over which it has care, control or management. It is exempt from rates on that land, but must pay charges for works and services provided by the council (section 13(2)). If GenCorp leases any of its land to a third party, it must ensure the lease agreement clearly allocates responsibility for rates to the lessee, as GenCorp will not be liable but the lessee will be. The council should be notified of the lease and the lessee’s contact details.

Document authentication requires that the board authorise specific persons to sign documents. GenCorp should maintain a register of authorised signatories and keep board resolutions authorising them. The corporate seal is not required if a document is signed by an authorised person (section 15).

Employees and agents should be trained on the requirement of “good faith” to maintain the personal liability protection in section 14. The corporation may wish to indemnify employees for acts that might fall outside good faith, but that is not required by the Act.

For lessees of GenCorp land: Verify with the council that they are registered as the rateable entity. Factor rates into lease costs. Consider obtaining an indemnity from GenCorp if the statutory exemption is later contested.

For private electricity market participants: Monitor the section 11 review and any extension declaration. A copy of the declaration must be tabled in the Legislative Assembly and is published in the Gazette. If the restriction is extended, private retailers remain protected from GenCorp’s retail competition for the extension period. If it expires, GenCorp can freely retail, and its rates exemption becomes a competitive factor. Participants may also challenge the lawfulness of any Ministerial authorisation under section 10(3) if it is not properly gazetted or is ultra vires.