Appendix A: Discussion paper on Reforming Victoria's public finance legislation

Extract from Public Administration Act 2004, Part 1, s. 5

PART 1 — PRELIMINARY

5 What are public entities?

(1) For the purposes of this Act a public entity is a body, whether corporate or unincorporated—

(a) that is established—

(i) by or under an Act (other than a private Act) or the Corporations Act; or

(ii) by the Governor in Council; or

(iii) by a Minister; and

(b) in the case of a body corporate, the right to appoint at least one half of the directors of which is vested in the Governor in Council or a Minister or could have been so vested in the case of a body corporate established by an Order made by the Governor in Council or a Minister under the power given by the Act under which the Order is made; and

(c) that has a public function to exercise on behalf of the State or is wholly owned by the State; and

(d) in the case of a body that does not have any function to exercise other than the provision of advice or a report to any person or body—

(i) has written terms of reference guiding its operation; and

(ii) is required to provide the advice or report to a Minister or the Government; and

(iii) is declared to be a public entity for the purposes of this Act—

(A) by the Act or subordinate instrument or other document under which it is established; or

(B) by an Order under subsection (3)—

but does not include—

(da) a Department or an Administrative Office; or

(e) an exempt body; or

(f) a special body in its capacity as a special body; or

(g) a community health centre within the meaning of the Health Services Act 1988 or a body that provides aged care services that is, or is capable of being, registered under that Act; or

(h) a body, or a class of body, that is declared by an Order under subsection (2) not to be a public entity for the purposes of this Act.

(1A) To avoid doubt and without limiting subsection (1), the following are public entities for the purposes of this Act—

(a) the board of a TAFE institute within the meaning of the Education and Training Reform Act 2006 (other than the TAFE division of a university);

(b) the Board of AMES and the Board of the Centre for Adult Education, within the meaning of the Education and Training Reform Act 2006.

(2) The Governor in Council may, by Order published in the Government Gazette, declare a body, or a class of body, not to be a public entity for the purposes of this Act.

(3) The Governor in Council may, by Order published in the Government Gazette, declare a body, or a class of body, that does not have any function to exercise other than the provision of advice or a report to any person or body and that satisfies the requirements of subsection (1)(d)(i) and (ii) to be a public entity for the purposes of this Act.

(4) If an exempt body is a public entity for the purposes of this Act in a capacity other than its capacity as an exempt body, nothing in this Act that applies to the body as a public entity applies to the body in its capacity as an exempt body.

Example

A municipal council is appointed as a committee of management under section 14(2) of the Crown Land (Reserves) Act 1978. As a committee of management the municipal council is a public entity as it is established under an Act with a public function to exercise on behalf of the State. It is not, however, a public entity in its ordinary role as a municipal council because, in that role, it is an exempt body and exempt bodies are not public entities.

(5) If—

(a) a provision of an Act other than this Act has the effect that a body (an advisory body) or a member of an advisory body or of the governing body (by whatever name called) of an advisory body is not subject to this Act—

(i) other than Part 5; or

(ii) other than Part 5 or except in accordance with Part 7; and

(b) the advisory body does not have any function to exercise other than the provision of advice or a report to any person or body—

despite the provision of that other Act, the advisory body is not a public entity for the purposes of this Act unless the requirements of subparagraphs (i), (ii) and (iii) of subsection (1)(d) are satisfied in respect of it.

(6) If a provision of an Act other than this Act has the effect that a body (a relevant body) or a member of a relevant body or of the governing body (by whatever name called) of a relevant body is not subject to this Act—

(a) other than Part 5; or

(b) other than Part 5 or except in accordance with Part 7—

despite the provision of that other Act, the relevant body may be declared by an Order under subsection (2) not to be a public entity for the purposes of this Act.

View other sections of this Discussion Paper:

Foreword
Introduction
1. Victoria’s current public finance system
2. The case for change
3. Possible directions for reform
4. Next steps
Appendix A: Extract from Public Administration Act 2004, Part 1, s. 5
Appendix B: Extract from Public Administration Act 2004, Part 5, s. 81
List of shortened forms
Glossary of terms