Tasmanian Times

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TasWater takeover fundamentally legally flawed

 Legal advice to TasWater shows government takeover unconstitutional
 Hodgman and Gutwein won’t say if they sought their own legal advice
 Government’s signature policy looks sunk
Shadow Local Government Minister Madeleine Ogilvie today expressed deep concern over the Liberal Government’s plans to compulsorily acquire TasWater.
“Today we have seen TasWater Chair Miles Hampton release Senior Counsel advice that the Minister’s plan is likely to be found to be fatally flawed,” Ms Ogilvie said.
“It is a longstanding principle of Australian law and business that property, including shareholdings, cannot be forcibly acquired by government.
“Section 109 of the Australian Constitution makes it very clear that federal laws take precedence over state laws.
“In the case of TasWater, it is a corporation and its shares are wholly owned by Local Government.
“That means federal Australian Corporations Law applies, and nowhere does that law indicate a government has a power to compulsorily acquire shares.
“It seems that after all the posturing, the Minister does not have a legal power to unilaterally remove TasWater shares from their Local Government owners.
“He hasn’t been able to negotiate a deal. Instead he has indicated he will try to bring on legislation to forcibly acquire TasWater.
“The fact is that unless the government has the power to forcibly acquire the ownership of TasWater, this attempt will fail. The likely remedy, should the Minister seek to persist in the face of senior counsel’s legal advice that he is acting outside of his power, is for the affected parties to seek temporary or permanent injunctions.
“It would no doubt have benefited the Treasurer a great deal to have properly secured a position on this serious legal matter before setting down this path.
“As much as everyone wants to see Tasmania’s water and sewerage problems fixed, the task has to be approached sensibly and in alignment with not only the law, but good engineering principles. The Treasurer has failed on both counts.”
Madeleine Ogilvie MP Shadow Local Government and Planning Minister

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