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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Electricity Generator Assets
(Authorised Transactions) Bill 2012
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Interpretation--key definitions 2
Part 2 Authorised transfers of electricity generator assets
4 Transfer of electricity generator assets to private sector 3
5 Transfer of electricity generator assets between public
sector agencies 3
6 Proceeds of transaction 3
Part 3 Facilitating authorised transactions
7 Treasurer's functions for the purposes of an authorised
transaction 5
8 Transaction SOCs 5
b2011-161-20.d15
Electricity Generator Assets (Authorised Transactions) Bill 2012
Contents
Page
9 Transaction companies 6
10 Functions of electricity generators and transaction entities 6
11 Direction and control of electricity generators and
transaction entities 7
12 Establishment of Electricity Assets Ministerial Holding
Corporation 7
Part 4 Arrangements for transfer of assets, staff and
functions
13 Vesting orders 9
14 Staff transfers 9
15 Effect of transfer of electricity generator assets between
public sector agencies 10
16 Grant of relevant authorisations 11
17 Acquisition of land by Electricity Assets Ministerial Holding
Corporation 12
Part 5 Operation of other laws
18 State taxes 14
19 Management of electricity trading risks--competition
exemption 14
20 General relationship of Act with other State legislation 15
21 Release of information by Auditor-General 15
22 Contracts for sale of land 16
23 Protection of contractual and other obligations 16
24 Compensation not payable 17
Part 6 Miscellaneous
25 Delegation 18
26 Act to bind State and other jurisdictions 18
27 Extraterritorial operation of Act 18
28 Construction of Act and instruments so as not to exceed
legislative power 19
29 Certificate evidence 20
30 Service or giving of documents 20
31 Regulations 20
Schedule 1 Interpretative provisions 21
Schedule 2 Provisions concerning transaction SOCs 25
Schedule 3 Corporate conversion of electricity
generators and transaction SOCs 28
Schedule 4 Vesting of assets, rights and liabilities 30
Schedule 5 Ownership restrictions in floated transaction
companies 33
Contents page 2
Electricity Generator Assets (Authorised Transactions) Bill 2012
Contents
Page
Schedule 6 Savings, transitional and other provisions 47
Schedule 7 Amendment of Subordinate Legislation
Act 1989 No 146 50
Contents page 3
New South Wales
Electricity Generator Assets
(Authorised Transactions) Bill 2012
No , 2012
A Bill for
An Act to authorise and provide for the transfer of the electricity generator assets of
the State.
Clause 1 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Electricity Generator Assets (Authorised Transactions) 4
Act 2012. 5
2 Commencement 6
(1) This Act commences on the date of assent, except as provided by 7
subsection (2). 8
(2) Schedule 5 (Ownership restrictions in floated transaction companies) 9
commences on a day to be appointed by proclamation. 10
3 Interpretation--key definitions 11
In this Act: 12
authorised transaction means a transfer of electricity generator assets 13
authorised by Part 2. 14
electricity generator means a statutory State owned corporation 15
constituted by the Energy Services Corporations Act 1995 as an 16
electricity generator under that Act. 17
electricity generator assets means assets, rights and liabilities of an 18
electricity generator. 19
Note. Schedule 1 contains other interpretative provisions. 20
Page 2
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 4
Authorised transfers of electricity generator assets Part 2
Part 2 Authorised transfers of electricity generator 1
assets 2
4 Transfer of electricity generator assets to private sector 3
This Act authorises the transfer of electricity generator assets to the 4
private sector. 5
5 Transfer of electricity generator assets between public sector agencies 6
This Act authorises the transfer of electricity generator assets between 7
public sector agencies. 8
6 Proceeds of transaction 9
(1) The proceeds of the transfer of electricity generator assets pursuant to 10
an authorised transaction (the transaction proceeds) belong to and are 11
payable directly to the State. 12
(2) The transaction proceeds paid to the State are to be paid into the Restart 13
NSW Fund (the Fund) established under the Restart NSW Fund Act 14
2011. 15
(3) The following deductions are authorised to be made from the 16
transaction proceeds: 17
(a) deduction of such amounts as the Treasurer approves to repay 18
debt and satisfy other liabilities of a public sector agency in 19
respect of electricity generator assets transferred for the purposes 20
of an authorised transaction, 21
(b) deduction of such amounts as the Treasurer approves to 22
reimburse public sector agencies for payments made by them in 23
respect of any tax, duty, fee or charge imposed by any Act or law 24
of the State or any other jurisdiction in connection with a 25
transaction arrangement, 26
(c) deduction of such amounts as the Treasurer approves to satisfy 27
any liability of a public sector agency arising under or in 28
connection with a transaction arrangement, 29
(d) deduction of such amounts as the Treasurer approves to meet 30
expenses reasonably incurred by public sector agencies for the 31
purposes of an authorised transaction. 32
(4) The transaction proceeds do not include any amount certified by the 33
Treasurer to have been paid to a public sector agency as a tax, duty, fee 34
or charge imposed by any Act or law of the State in connection with a 35
transaction arrangement. 36
Page 3
Clause 6 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 2 Authorised transfers of electricity generator assets
(5) The deductions authorised to be made from the transaction proceeds 1
may be made before payment of the transaction proceeds into the Fund 2
or may be made by payment from the Fund. 3
(6) The requirements of this section do not affect the validity of a 4
transaction arrangement. 5
Page 4
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 7
Facilitating authorised transactions Part 3
Part 3 Facilitating authorised transactions 1
7 Treasurer's functions for the purposes of an authorised transaction 2
The Treasurer has and may exercise all such functions as are necessary 3
or convenient for the purposes of an authorised transaction. The 4
functions conferred on the Treasurer by any other provision of this Act 5
do not limit the Treasurer's functions under this section. 6
8 Transaction SOCs 7
(1) A statutory State owned corporation may be established under this Act 8
as a transaction SOC for the purposes of an authorised transaction. 9
(2) The Governor may by order published in the Gazette: 10
(a) create a corporation under a corporate name specified in the 11
order, and 12
(b) specify the functions of the corporation, and 13
(c) direct that the corporation is established as a statutory State 14
owned corporation and as a transaction SOC. 15
(3) On the day on which the order takes effect: 16
(a) a corporation is constituted with the corporate name and 17
functions specified in the order, and 18
(b) the State Owned Corporations Act 1989 is amended by inserting 19
in Schedule 5 the corporate name specified in the order (to 20
establish the corporation as a statutory State owned corporation 21
under that Act), and 22
(c) the State owned corporation thereby established is a transaction 23
SOC for the purposes of this Act. 24
(4) The portfolio Minister of a SOC established under this section is the 25
Minister administering section 13 (Creation of additional energy 26
services corporations) of the Energy Services Corporations Act 1995. 27
(5) Schedule 2 has effect with respect to a transaction SOC. The provisions 28
of that Schedule are in addition to and (except to the extent to which that 29
Schedule otherwise provides) do not derogate from the provisions of the 30
State Owned Corporations Act 1989. 31
Page 5
Clause 9 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 3 Facilitating authorised transactions
9 Transaction companies 1
(1) The Treasurer may for the purposes of an authorised transaction 2
establish, or direct the establishment of, companies as transaction 3
companies in any of the following ways: 4
(a) the formation or acquisition by or on behalf of the State or a SOC 5
of a company limited by shares, so that all the issued shares in the 6
company are held by or on behalf of the State or a SOC (or both), 7
(b) the formation or acquisition of a company as a wholly owned 8
subsidiary company of a transaction company, 9
(c) the conversion of an electricity generator or transaction SOC into 10
a company limited by shares as provided by Schedule 3. 11
(2) A transaction company that is a public sector agency may be converted 12
from one kind of company to any other kind of company. 13
(3) Except by express agreement with the Treasurer: 14
(a) a transaction company is not and does not represent the State, and 15
(b) the debts, liabilities and obligations of a transaction company are 16
not guaranteed by the State. 17
(4) The Treasurer may act for or on behalf of the State, a SOC or a 18
transaction company that is a public sector agency in connection with 19
the rights, privileges and benefits, and the duties, liabilities and 20
obligations of the State, a SOC or transaction company as the holder of 21
shares or other securities in a transaction company. 22
(5) Shares and other securities in a transaction company that is a public 23
sector agency may be issued, sold or transferred in accordance with the 24
directions of the Treasurer. The Treasurer may on behalf of the State, a 25
SOC or a transaction company that is a public sector agency enter into 26
and carry out transaction arrangements for the issue, sale or transfer of 27
shares and other securities in a transaction company. 28
(6) An electricity generator that becomes a transaction company remains an 29
electricity generator for the purposes of this Act (despite ceasing to be 30
a statutory State owned corporation constituted by the Energy Services 31
Corporations Act 1995). 32
10 Functions of electricity generators and transaction entities 33
(1) Each electricity generator and transaction entity has and may exercise 34
all such functions as are necessary or convenient for the purposes of an 35
authorised transaction. 36
(2) The functions conferred by this section are in addition to any other 37
functions that an electricity generator or transaction entity has apart 38
Page 6
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 11
Facilitating authorised transactions Part 3
from this section and those other functions do not prevent or otherwise 1
limit the exercise of the additional functions conferred by this section. 2
(3) The Treasurer may act for or on behalf of an electricity generator or 3
transaction entity in the exercise of any of its functions for the purposes 4
of an authorised transaction while it is a public sector agency. 5
11 Direction and control of electricity generators and transaction entities 6
(1) Each electricity generator and transaction entity is subject to the 7
direction and control of the Treasurer in the exercise of any of its 8
functions for the purposes of an authorised transaction while it is a 9
public sector agency. 10
(2) The Treasurer may give directions for the purposes of an authorised 11
transaction to an electricity generator or transaction entity, and to the 12
directors and other officers of an electricity generator or transaction 13
entity. Any such directions must be complied with by the electricity 14
generator, the transaction entity or the directors or other officers 15
concerned. 16
(3) Directions to a transaction entity (or its directors and other officers) can 17
only be given and are only required to be complied with while the 18
transaction entity is a public sector agency. 19
(4) The power to give directions under this section extends to directions 20
with respect to the way in which an electricity generator or transaction 21
entity is to conduct its business and other affairs. 22
(5) Action taken by an electricity generator or transaction SOC to comply 23
with a direction of the Treasurer under this Act does not require the 24
approval of the voting shareholders or portfolio Minister of the 25
corporation. 26
(6) Anything done or omitted to be done by a director or other officer of an 27
electricity generator or transaction entity in complying with a direction 28
given by the Treasurer under this Act does not subject the director or 29
officer personally to any action, liability, claim or demand. 30
(7) The provisions of this section are declared to be Corporations 31
legislation displacement provisions for the purposes of section 5G of the 32
Corporations Act in relation to the provisions of the Corporations 33
legislation generally. 34
12 Establishment of Electricity Assets Ministerial Holding Corporation 35
(1) There is constituted by this Act a corporation with the corporate name 36
of the Electricity Assets Ministerial Holding Corporation. 37
Page 7
Clause 12 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 3 Facilitating authorised transactions
(2) The affairs of the Corporation are to be managed by the Treasurer who 1
may authorise another Minister to exercise functions in relation to 2
particular assets, rights and liabilities. 3
(3) Any act, matter or thing done in the name of, or on behalf of, the 4
Corporation by the Treasurer or a Minister authorised by the Treasurer, 5
or with the authority of the Treasurer or any such Minister, is taken to 6
have been done by the Corporation. 7
(4) The Corporation has the functions conferred or imposed on it by or 8
under this or any other Act. 9
(5) The functions of the Corporation are: 10
(a) to hold, on behalf of the Crown, electricity generator assets 11
acquired by it or transferred to it by or under this or any other Act, 12
and 13
(b) to carry on any activities or business that relate to any electricity 14
generator assets held by it, including demanding, collecting and 15
receiving charges, levies, rates and fees, and 16
(c) such other functions for the purposes of an authorised transaction 17
as may be prescribed by the regulations. 18
Page 8
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 13
Arrangements for transfer of assets, staff and functions Part 4
Part 4 Arrangements for transfer of assets, staff and 1
functions 2
13 Vesting orders 3
The Treasurer may make vesting orders under Schedule 4 for the 4
purposes of an authorised transaction. 5
14 Staff transfers 6
(1) The Treasurer may, for the purposes of an authorised transaction, by 7
order in writing, transfer the employment of an employee of an 8
electricity generator (a transferred employee) to the employment of 9
another public sector agency. 10
(2) A transferred employee is (until other provision is duly made under any 11
Act or law) to be employed in accordance with any relevant statutory 12
provisions, awards, agreements and determinations that would have 13
applied to the employee had the employee remained an employee of the 14
electricity generator concerned. 15
(3) On the transfer by order under this section of an employee's 16
employment from one employer (the current employer) to another 17
employer (the new employer) the following provisions have effect: 18
(a) the employee is entitled to continue as a contributor, member or 19
employee for the purposes of any superannuation scheme in 20
respect of which he or she was a contributor, member or 21
employee (as an employee of the current employer) immediately 22
before the transfer of employment and remains so entitled subject 23
to any variation to that entitlement made either by agreement or 24
otherwise in accordance with law, 25
(b) the new employer is taken to be an employer for the purposes of 26
any superannuation scheme in respect of which the employee 27
continues as a contributor, member or employee pursuant to an 28
entitlement under this section, 29
(c) the continuity of the employee's contract of employment is taken 30
not to have been broken by the transfer of employment, and 31
service of the employee with the current employer (including 32
service deemed to be service with the current employer) that is 33
continuous service up to the time of transfer is taken for all 34
purposes to be service with the new employer, 35
(d) the employee retains any rights to sick leave, annual leave or long 36
service leave accrued or accruing immediately before the transfer 37
(except accrued leave for which the employee has, on ceasing to 38
be an employee of the current employer, been paid the monetary 39
value in pursuance of any other entitlement of the employee). 40
Page 9
Clause 15 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 4 Arrangements for transfer of assets, staff and functions
(4) The Treasurer may negotiate and enter into agreements or industrial 1
instruments concerning workplace relations for or on behalf of a public 2
sector agency in connection with the operation of this section. 3
15 Effect of transfer of electricity generator assets between public sector 4
agencies 5
(1) When the business of an electricity generator is transferred to another 6
public sector agency for the purposes of an authorised transaction: 7
(a) the public sector agency becomes the new operator of the 8
business and that business is to be conducted as the electricity 9
business of the new operator, and 10
(b) the new operator is deemed to be an electricity generator for the 11
purposes of this Act in respect of the business that comprises its 12
electricity business as conducted by the new operator from time 13
to time, but only while the new operator is a public sector agency 14
and not in respect of any other business of the new operator, and 15
(c) the new operator has and may exercise all such functions as may 16
be necessary or convenient for the purpose of the carrying on of 17
its electricity business, and 18
(d) the new operator has the benefit of any relevant operating licence 19
for the purpose of the carrying on of its electricity business, and 20
(e) a public sector agency responsible for the issue of any such 21
relevant operating licence must, at the request of the new 22
operator, re-issue the licence in the name of the new operator and 23
subject to terms, conditions and endorsements that are the same 24
(or to substantially the same effect) as those to which it was 25
subject before its re-issue. 26
(2) If the business comprising the electricity business of the new operator 27
is transferred to another public sector agency, this section also operates 28
in respect of that transfer (and any further transfer for the purposes of an 29
authorised transaction). 30
(3) This section applies to the transfer of part of, or an interest in, a business 31
in the same way as it applies to a transfer of the whole business. 32
(4) In this section: 33
relevant operating licence, in relation to a transferred business of an 34
electricity generator, means any licence, permit, entitlement, 35
accreditation or other authority that was held by the electricity generator 36
before the transfer and that is necessary or convenient for the carrying 37
on of any aspect of the electricity business of the new operator. 38
Page 10
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 16
Arrangements for transfer of assets, staff and functions Part 4
16 Grant of relevant authorisations 1
(1) The Treasurer may give directions to a public sector agency for or with 2
respect to the grant of any relevant authorisation to a person who 3
becomes or who it is proposed will become the new operator of any 4
electricity generator assets pursuant to an authorised transaction, 5
including directions for or with respect to any of the following: 6
(a) requiring the grant of any such relevant authorisation without the 7
necessity for the making or determination of any application, 8
(b) the displacement or modification of any provision of a relevant 9
law in its application to the grant of any such relevant 10
authorisation, 11
(c) the conditions or endorsements subject to which any such 12
relevant authorisation is to be granted or that are to be attached to 13
any such relevant authorisation. 14
(2) A direction may only be given under this section for the grant of a 15
relevant authorisation that: 16
(a) operates to transfer or replace an existing relevant authorisation 17
that is currently in force, and 18
(b) is subject to terms, conditions or endorsements that are the same 19
(or to substantially the same effect) as those to which that existing 20
relevant authorisation is subject. 21
(3) The Treasurer must consult with a public sector agency before giving a 22
direction to the public sector agency under this section. 23
(4) A public sector agency exercising functions under a relevant law must 24
comply with a direction of the Treasurer under this section. 25
(5) Anything done by an electricity generator in compliance with a 26
condition or endorsement of a relevant authorisation in relation to 27
electricity generator assets of which a person is the new operator is 28
taken to have been done by the new operator for the purposes of any 29
corresponding condition or endorsement of a relevant authorisation 30
granted to the new operator pursuant to a direction under this section. 31
(6) A relevant authorisation granted to an electricity generator or to the new 32
operator of electricity generator assets may not be suspended or 33
cancelled on the ground of the conversion of the electricity generator or 34
new operator to a company or on the ground of any change that has 35
occurred in the officers or shareholders of the company as a result of 36
that conversion or pursuant to a transaction arrangement. 37
Page 11
Clause 17 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 4 Arrangements for transfer of assets, staff and functions
(7) In this section: 1
grant includes issue and transfer. 2
new operator of electricity generator assets means: 3
(a) a public sector agency to which any electricity generator assets 4
are transferred for the purposes of an authorised transaction, or 5
(b) a person (or the nominee of a person) in whom electricity 6
generator assets are vested, or to whom electricity generator 7
assets are transferred, pursuant to an authorised transaction. 8
relevant authorisation means a licence, permit, consent, entitlement, 9
accreditation or other authorisation under a relevant law. 10
relevant law means any of the following Acts and any regulations or 11
instruments under those Acts: 12
Electricity Supply Act 1995 13
Energy Services Corporations Act 1995 14
Gas Supply Act 1996 15
Protection of the Environment Operations Act 1997 16
Water Act 1912 17
Water Management Act 2000 18
17 Acquisition of land by Electricity Assets Ministerial Holding Corporation 19
(1) The Electricity Assets Ministerial Holding Corporation may, for the 20
purposes of an authorised transaction, acquire land (including an 21
interest in land) by agreement or by compulsory process in accordance 22
with the Land Acquisition (Just Terms Compensation) Act 1991 that the 23
Corporation determines to be: 24
(a) land on which electricity generator assets of an electricity 25
generator were situated on the date of assent to this Act and 26
continue to be situated, or 27
(b) land that on the date of assent to this Act was used or occupied by 28
an electricity generator for or in connection with the exercise of 29
any function of the electricity generator and that continues to be 30
so used or occupied. 31
(2) In the case of land used (but not occupied) by an electricity generator 32
for or in connection with the exercise of any function of the electricity 33
generator, such as land used for the purposes of access, the power 34
conferred by this section to acquire the land is limited to a power to 35
acquire an interest in the land sufficient to allow that use of the land to 36
continue. 37
Page 12
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 17
Arrangements for transfer of assets, staff and functions Part 4
(3) A public sector agency is not entitled to compensation under the Land 1
Acquisition (Just Terms Compensation) Act 1991 as the owner of land 2
acquired pursuant to this section. 3
(4) Land acquired by the Corporation pursuant to this section is deemed to 4
be an asset of an electricity generator for the purposes of this Act and 5
the Corporation is deemed to be an electricity generator for the purposes 6
of this Act while it holds the land. 7
Note. Land acquired pursuant to this section is an electricity generator asset for 8
the purposes of an authorised transaction (whether or not it was an electricity 9
generator asset before it was acquired). 10
Page 13
Clause 18 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 5 Operation of other laws
Part 5 Operation of other laws 1
18 State taxes 2
(1) In this section: 3
relevant matter means any of the following: 4
(a) the transfer of electricity generator assets for the purposes of an 5
authorised transaction, 6
(b) a vesting of assets, rights or liabilities by operation of Schedule 4 7
(Vesting of assets, rights and liabilities) and anything certified by 8
the Treasurer as having been done in consequence of such a 9
vesting (for example, the transfer or registration of an interest in 10
land), 11
(c) the issue, disposal or purchase of shares or other securities in a 12
company for the purposes of an authorised transaction, 13
(d) any matter connected with the corporate conversion of an 14
electricity generator or transaction SOC for the purposes of an 15
authorised transaction, 16
(e) such other matters for the purposes of an authorised transaction 17
as may be prescribed by the regulations. 18
State tax means application or registration fees, duty under the Duties 19
Act 1997 or any other tax, duty, fee or charge imposed by any Act or law 20
of the State. 21
(2) State tax is not payable by a public sector agency in relation to a relevant 22
matter. 23
(3) State tax is not payable by a person or body (other than a public sector 24
agency) in relation to a relevant matter to such extent (if any) as the 25
Treasurer may direct by order in writing, either generally or in a 26
particular case. 27
(4) An order may be made by the Treasurer under this section before or 28
after the liability to pay the State tax concerned accrues. 29
(5) The Treasurer must give a copy of an order under this section to the 30
Chief Commissioner of State Revenue. 31
19 Management of electricity trading risks--competition exemption 32
(1) The following are specifically authorised by this Act for the purposes of 33
the Competition and Consumer Act 2010 of the Commonwealth and the 34
Competition Code of New South Wales: 35
(a) any agreement (including any electricity derivative agreement) 36
entered into by an electricity generator or transaction entity in 37
connection with the management of electricity trading risks and 38
Page 14
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 20
Operation of other laws Part 5
certified by the Treasurer for the purposes of this section to be an 1
agreement entered into with the approval of or at the direction of 2
the Treasurer, 3
(b) the conduct of the parties in negotiating and entering into any 4
such agreement, 5
(c) the conduct of the parties (and of the successors, substitutes or 6
assigns of the parties) in performing any such agreement. 7
(2) Anything authorised to be done by this section is authorised only to the 8
extent (if any) that it would otherwise contravene Part IV of the 9
Competition and Consumer Act 2010 of the Commonwealth or the 10
Competition Code of New South Wales. 11
20 General relationship of Act with other State legislation 12
(1) None of the following provisions operate to prevent, restrict or 13
otherwise limit the carrying out of a transaction arrangement or the 14
exercise of a function for the purposes of an authorised transaction: 15
(a) any provision of the State Owned Corporations Act 1989, 16
(b) any provision of the constitution of a statutory SOC or a 17
subsidiary of a statutory SOC, 18
(c) section 11 (Prohibition on privatisation of energy services 19
corporations) of the Energy Services Corporations Act 1995. 20
(2) In the event of any inconsistency between the provisions of this Act or 21
the regulations and a provision of any other State legislation that is 22
prescribed by the regulations as an inconsistent provision for the 23
purposes of this section, the provisions of this Act or the regulations (as 24
the case may be) prevail to the extent of the inconsistency. 25
(3) The requirements of any other Act (whether enacted before or after this 26
Act) for the approval by resolution of either or both Houses of 27
Parliament (or by Act) of any act that constitutes the transfer of 28
electricity generator assets for the purposes of an authorised transaction 29
is satisfied by the enactment of this Act. 30
21 Release of information by Auditor-General 31
Section 38 (Secrecy) of the Public Finance and Audit Act 1983 does not 32
apply to or in respect of a report or communication that the Treasurer 33
authorises the Auditor-General to make to a person for the purposes of 34
an authorised transaction. 35
Page 15
Clause 22 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 5 Operation of other laws
22 Contracts for sale of land 1
Section 52A (Contracts for sale of land) of the Conveyancing Act 1919 2
does not apply to a contract for the sale of land that is entered into for 3
the purposes of an authorised transaction. 4
23 Protection of contractual and other obligations 5
(1) This section applies to the following: 6
(a) the operation of this Act (including any order under this Act and 7
anything done or omitted to be done under or for the purposes of 8
this Act), 9
(b) the transfer of electricity generator assets for the purposes of an 10
authorised transaction, 11
(c) the entering into or performance of obligations under a 12
transaction arrangement by a public sector agency, 13
(d) a disclosure of information by, on behalf of or with the consent 14
of a public sector agency for the purposes of an authorised 15
transaction. 16
(2) None of the matters or things to which this section applies are to be 17
regarded as: 18
(a) a breach of contract or confidence or otherwise as a civil wrong, 19
or 20
(b) a breach of any instrument (including, without limitation, any 21
provision prohibiting, restricting or regulating the assignment or 22
transfer of assets, rights or liabilities) or as requiring any act to be 23
done under an instrument, or 24
(c) giving rise to any right or remedy by a party to a contract or other 25
instrument, or as causing or permitting the termination of, or 26
exercise of rights under, any contract or other instrument, or 27
(d) an event of default under any contract or other instrument, or 28
(e) giving rise to a breach of or an offence against a provision of an 29
Act that prohibits or restricts the disclosure of information, or 30
(f) releasing a surety or other obligee wholly or in part from an 31
obligation. 32
(3) Subsection (2) does not affect the rights and obligations of the parties to 33
a transaction arrangement in respect of the performance of obligations 34
under the transaction arrangement. 35
(4) In this section: 36
instrument means an instrument (other than an instrument made under 37
this Act) or any other document that creates, modifies or extinguishes 38
rights or liabilities (or would do so if lodged, filed or registered in 39
Page 16
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 24
Operation of other laws Part 5
accordance with any law), and includes any judgment, order, process or 1
other instrument issued by a court or tribunal. 2
24 Compensation not payable 3
(1) Compensation is not payable by or on behalf of the State: 4
(a) because of the enactment or operation of this Act, or for any 5
consequence of that enactment or operation, or 6
(b) because of any statement or conduct relating to the enactment of 7
this Act. 8
(2) This section does not extend to compensation payable under a 9
transaction arrangement to a party to the transaction arrangement in 10
connection with the performance of obligations under the transaction 11
arrangement. 12
(3) In this section: 13
compensation includes damages or any other form of monetary 14
compensation. 15
conduct includes any act or omission, whether unconscionable, 16
misleading, deceptive or otherwise. 17
operation of this Act includes the operation of any notice or order under 18
this Act and any agreement entered into under or for the purposes of this 19
Act. 20
statement includes a representation of any kind: 21
(a) whether made verbally or in writing, and 22
(b) whether negligent, false, misleading or otherwise. 23
the State means the Crown within the meaning of the Crown 24
Proceedings Act 1988, and includes a public sector agency and an 25
officer, employee or agent of the Crown or a public sector agency. 26
Page 17
Clause 25 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 6 Miscellaneous
Part 6 Miscellaneous 1
25 Delegation 2
The Treasurer may delegate to the Secretary of the Treasury, or to any 3
other officer of the Government Service prescribed by the regulations, 4
any function of the Treasurer under this Act except this power of 5
delegation. 6
26 Act to bind State and other jurisdictions 7
(1) This Act binds the State and, in so far as the legislative power of the 8
Parliament of New South Wales permits, the other States, the Territories 9
and the Commonwealth. 10
(2) Without limiting subsection (1), this Act has effect despite any privilege 11
or immunity of the Crown in any of its capacities. 12
(3) This Act does not make any State or Territory, the Commonwealth, or 13
the Crown in any of its capacities, liable to be prosecuted for an offence. 14
(4) A reference in this section to a State, Territory or the Commonwealth 15
includes a reference to the Government of the State, Territory or 16
Commonwealth. 17
27 Extraterritorial operation of Act 18
(1) It is the intention of the Parliament of New South Wales that the 19
operation of this Act should, as far as possible, include operation in 20
relation to the following: 21
(a) things situated in or outside the territorial limits of the State, 22
(b) acts, transactions and matters done, entered into or occurring in 23
or outside the territorial limits of the State, 24
(c) things, acts, transactions and matters (wherever situated, done, 25
entered into or occurring) that would, apart from this Act, be 26
governed or otherwise affected by the law of another State, a 27
Territory, the Commonwealth or a foreign country. 28
(2) Without limiting subsection (1), it is the intention of the Parliament of 29
New South Wales that the provisions of this Act have an operation in 30
relation to the things, acts, transactions and matters referred to in that 31
subsection even if the rules of private international law (whether at 32
general law or as provided by legislation) would require the application 33
of a law other than this Act instead of the provisions of this Act. 34
Page 18
Electricity Generator Assets (Authorised Transactions) Bill 2012 Clause 28
Miscellaneous Part 6
28 Construction of Act and instruments so as not to exceed legislative 1
power 2
(1) Unless a contrary intention appears, if a provision of this Act or an 3
instrument made under this Act: 4
(a) would, apart from this section, have an invalid application, but 5
(b) also has at least one valid application, 6
it is the intention of the Parliament of New South Wales that the 7
provision is not to have the invalid application, but is to have every valid 8
application. 9
(2) Despite subsection (1), the provision is not to have a particular valid 10
application if: 11
(a) apart from this section, it is clear, taking into account the 12
provision's context and the purposes or objects underlying this 13
Act, that the provision was intended to have that valid application 14
only if every invalid application, or a particular invalid 15
application, of the provision had also been within the legislative 16
power of the Parliament of New South Wales, or 17
(b) the provision's operation in relation to that valid application 18
would be different in a substantial respect from what would have 19
been its operation in relation to that valid application if every 20
invalid application, or a particular invalid application, of the 21
provision had been within the legislative power of the Parliament 22
of New South Wales. 23
(3) Subsection (2) does not limit the cases in which a contrary intention 24
may be taken to appear for the purposes of subsection (1). 25
(4) This section is in addition to, and not in derogation of, section 31 of the 26
Interpretation Act 1987. 27
(5) In this section: 28
application means an application in relation to: 29
(a) one or more particular persons, things, matters, places, 30
circumstances or cases, or 31
(b) one or more classes (however defined or determined) of persons, 32
things, matters, places, circumstances or cases. 33
invalid application, in relation to a provision, means an application 34
because of which the provision exceeds the legislative power of the 35
Parliament of New South Wales. 36
valid application, in relation to a provision, means an application 37
which, if it were the provision's only application, would be within the 38
legislative power of the Parliament of New South Wales. 39
Page 19
Clause 29 Electricity Generator Assets (Authorised Transactions) Bill 2012
Part 6 Miscellaneous
29 Certificate evidence 1
A certificate purporting to be signed by the Treasurer or an officer 2
prescribed by the regulations certifying that an order specified or 3
referred to in the certificate is an order made by the Treasurer under a 4
specified provision of this Act is admissible in evidence in any legal 5
proceedings and is evidence of the matters certified. 6
30 Service or giving of documents 7
(1) A document that is authorised or required by this Act or the regulations 8
to be served on or given to any person may be served or given: 9
(a) in the case of a natural person: 10
(i) by delivering it to the person personally, or 11
(ii) by sending it by post to the address specified by the person 12
for the giving or service of documents or, if no such 13
address is specified, the residential or business address of 14
the person last known to the person giving or serving the 15
document, or 16
(iii) by sending it by facsimile transmission to the facsimile 17
number of the person, or 18
(b) in the case of a body corporate: 19
(i) by leaving it with a person apparently of or above the age 20
of 16 years at, or by sending it by post to, the head office, 21
a registered office or a principal office of the body 22
corporate or to an address specified by the body corporate 23
for the giving or service of documents, or 24
(ii) by sending it by facsimile transmission to the facsimile 25
number of the body corporate. 26
(2) Nothing in this section affects the operation of any provision of a law or 27
of the rules of a court authorising a document to be served on a person 28
in any other manner. 29
31 Regulations 30
The Governor may make regulations, not inconsistent with this Act, for 31
or with respect to any matter that by this Act is required or permitted to 32
be prescribed or that is necessary or convenient to be prescribed for 33
carrying out or giving effect to this Act. 34
Page 20
Electricity Generator Assets (Authorised Transactions) Bill 2012
Interpretative provisions Schedule 1
Schedule 1 Interpretative provisions 1
(Section 3) 2
1 Definitions 3
In this Act: 4
assets means any legal or equitable estate or interest (whether present or 5
future, whether vested or contingent and whether personal or 6
assignable) in real or personal property of any description (including 7
money), and includes securities, choses in action and documents. 8
authorised transaction--see section 3. 9
business of a body means all of the assets, rights and liabilities of the 10
body. 11
corporate conversion, in relation to an electricity generator or 12
transaction SOC, means the registration of the corporation as a 13
company under the Corporations Act. 14
Corporations Act means the Corporations Act 2001 of the 15
Commonwealth. 16
Corporations legislation means the Corporations legislation to which 17
Part 1.1A of the Corporations Act applies. 18
Electricity Assets Ministerial Holding Corporation or the Corporation 19
means the Electricity Assets Ministerial Holding Corporation 20
constituted by this Act. 21
electricity generator--see section 3. 22
electricity generator assets--see section 3. 23
function includes a power, authority or duty, and exercise a function 24
includes perform a duty. 25
general law means the common law and equity (as modified from time 26
to time by legislation). 27
initial public offer means the offer to the public of securities quoted or 28
to be quoted on a stock exchange that is a prescribed financial market 29
under the Corporations Act. 30
legislation includes: 31
(a) any statute of a legislature (whether enacted or made in Australia 32
or elsewhere), and 33
(b) any proclamation, regulation, rule, by-law, order or any other 34
kind of subordinate legislation (however described) made under 35
the authority of a statute (whether enacted or made in Australia 36
or elsewhere). 37
Page 21
Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 1 Interpretative provisions
liabilities means any liabilities, debts or obligations (whether present or 1
future, whether vested or contingent and whether personal or 2
assignable). 3
modification includes addition, exception, omission or substitution. 4
private sector means any person other than a public sector agency. 5
Note. A person who is a public sector agency of another jurisdiction is a private 6
sector person for the purposes of this Act. 7
public sector agency means any of the following: 8
(a) the State (including the Crown in right of the State), 9
(b) a Minister, 10
(c) the Ministerial Holding Corporation constituted by the State 11
Owned Corporations Act 1989, 12
(d) the Electricity Assets Ministerial Holding Corporation, 13
(e) a SOC, 14
(f) a public authority of the State, 15
(g) any other person acting on behalf of the State (or the Crown in 16
right of the State), 17
(h) a transaction company, but only while all the shares in the 18
transaction company are held by or on behalf of the State or a 19
SOC or the transaction company is the subsidiary of another 20
transaction company all the shares in which are held by or on 21
behalf of the State or a SOC. 22
rights means any rights, powers, privileges or immunities (whether 23
present or future, whether vested or contingent and whether personal or 24
assignable). 25
SOC means a State owned corporation within the meaning of the State 26
Owned Corporations Act 1989. 27
State legislation means any legislation of the State. 28
the State means the State of New South Wales. 29
transaction arrangement means a transaction, agreement or other 30
arrangement entered into by or on behalf of a public sector agency for 31
the purposes of an authorised transaction. 32
transaction company means a company established as a transaction 33
company pursuant to this Act. 34
transaction entity means a transaction SOC or a transaction company. 35
transaction SOC means a SOC established as a transaction SOC 36
pursuant to this Act. 37
Page 22
Electricity Generator Assets (Authorised Transactions) Bill 2012
Interpretative provisions Schedule 1
2 Functions for the purposes of an authorised transaction 1
For the purposes of this Act, any act, matter or thing is done or has effect 2
for the purposes of an authorised transaction if it is done or has effect 3
for the purpose of effecting or facilitating an authorised transaction or 4
is done or has effect for any purpose that is ancillary or incidental to or 5
consequential on an authorised transaction. 6
3 Transfer of electricity generator assets--interpretation 7
(1) When this Act authorises the transfer of electricity generator assets it is 8
authorising any transaction, arrangement or other action that results in 9
electricity generator assets becoming vested in the transferee. 10
(2) The following are examples of the ways in which electricity generator 11
assets can be transferred: 12
(a) direct sale to the transferee, 13
(b) sale to the transferee of a transaction entity, 14
(c) any other transaction whereby the transferee becomes an owner 15
of an interest in electricity generator assets. 16
(3) The transfer of electricity generator assets does not require a transfer of 17
electricity generator assets by or from an electricity generator and 18
could, for example, be effected by the corporate conversion of an 19
electricity generator (to establish a transaction company) and the 20
transfer of shares in the transaction company to the transferee (including 21
by means of an initial public offer of shares in the company). 22
(4) In this clause: 23
entity includes a transaction company. 24
sale of an entity includes a sale of securities in the entity. 25
transaction entity means: 26
(a) an entity that holds electricity generator assets or into which an 27
electricity generator is converted, or 28
(b) an entity that is the holding company of an entity referred to in 29
paragraph (a), or 30
(c) an entity that has control (within the meaning of the Corporations 31
Act) of an entity referred to in paragraph (a), or 32
(d) any other entity the sale of which results in electricity generator 33
assets being vested in the transferee. 34
Page 23
Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 1 Interpretative provisions
4 Words and expressions defined in Corporations Act 1
Words and expressions used in this Act that are defined in section 9 of 2
the Corporations Act have the same meanings as in that section, except 3
in so far as they are defined differently in this Act or the context or 4
subject-matter otherwise indicates or requires. 5
5 When events occur 6
If this Act provides for an event or other thing to occur on a particular 7
day, that event or thing is taken to occur at the beginning of that day. 8
6 Notes 9
Notes included in this Act do not form part of this Act. 10
Page 24
Electricity Generator Assets (Authorised Transactions) Bill 2012
Provisions concerning transaction SOCs Schedule 2
Schedule 2 Provisions concerning transaction SOCs 1
(Section 8) 2
1 Board of directors 3
(1) Each transaction SOC is to have a board of directors. 4
(2) The board is to consist of: 5
(a) the chief executive officer, and 6
(b) at least 3 and not more than 5 other directors appointed by the 7
voting shareholders. 8
(3) Of the directors appointed under subclause (2) (b), one is (in and by the 9
director's instrument of appointment as director or in and by another 10
instrument executed by the voting shareholders) to be appointed as 11
Chairperson of the Board. 12
(4) The board is accountable to the voting shareholders in the manner set 13
out in Part 4 of the State Owned Corporations Act 1989 and in the 14
constitution of the transaction SOC. 15
(5) The voting shareholders may remove a director, or the chairperson, 16
from office at any time for any or no reason and without notice and, in 17
that event, the office of the director or chairperson is taken to have 18
become vacant for the purposes of Schedule 8 to the State Owned 19
Corporations Act 1989. 20
(6) Except as provided by this clause, Schedule 8 to the State Owned 21
Corporations Act 1989 has effect with respect to the constitution and 22
procedure of the board. 23
(7) The provisions of section 20J of the State Owned Corporations Act 24
1989, and of clauses 2 (1) and (2), 4 and 7 (1) (d) and (2) of Schedule 8 25
to that Act, do not apply to a transaction SOC or to the chairperson. 26
(8) The provisions of clause 6 of Schedule 8 to the State Owned 27
Corporations Act 1989 do not apply to the chief executive officer, and 28
the chief executive officer is not entitled to remuneration under that 29
clause, in his or her capacity as a director. 30
2 Chief executive officer 31
(1) The chief executive officer of a transaction SOC is to be appointed by 32
the board after consultation with the voting shareholders. 33
(2) The board may remove a person from office as chief executive officer, 34
at any time, for any or no reason and without notice, but only after 35
consultation with the voting shareholders. 36
Page 25
Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 2 Provisions concerning transaction SOCs
(3) The chief executive officer is entitled to be paid such remuneration 1
(including travelling and subsistence allowances) as the board may 2
determine. 3
(4) The board may, after consultation with the voting shareholders, fix the 4
conditions of employment of the chief executive officer in so far as they 5
are not fixed by or under any other Act or law. 6
(5) The Public Sector Employment and Management Act 2002 (Chapter 5 7
included) does not apply to the chief executive officer. 8
(6) Subject to subclause (7), Schedule 9 to the State Owned Corporations 9
Act 1989 has effect with respect to the chief executive officer. 10
(7) The provisions of section 20K of the State Owned Corporations Act 11
1989, and of clauses 2, 3 and 6 of Schedule 9 to that Act, do not apply 12
to the chief executive officer. 13
3 Acting chief executive officer 14
(1) The board may, from time to time, appoint a person to act in the office 15
of chief executive officer during the illness or absence of the chief 16
executive officer. 17
(2) The board may remove a person from office as acting chief executive 18
officer, at any time, for any or no reason and without notice. 19
(3) A person, while acting in the office of chief executive officer: 20
(a) has all the functions of the chief executive officer and is taken to 21
be the chief executive officer, and 22
(b) is entitled to be paid such remuneration (including travelling and 23
subsistence allowances) as the board may determine. 24
(4) For the purposes of this clause, a vacancy in the office of chief executive 25
officer is regarded as an absence from office. 26
(5) Clause 5 of Schedule 9 to the State Owned Corporations Act 1989 does 27
not apply to an acting chief executive officer of a transaction SOC. 28
4 Dividends 29
(1) The voting shareholders of a transaction SOC, in consultation with the 30
board, are to determine the corporation's share dividends scheme. 31
(2) The dividends to be paid by a transaction SOC are to be declared by the 32
board in accordance with the share dividends scheme so determined. 33
(3) The provisions of section 20S (1) of the State Owned Corporations 34
Act 1989 do not apply to a transaction SOC. 35
Page 26
Electricity Generator Assets (Authorised Transactions) Bill 2012
Provisions concerning transaction SOCs Schedule 2
5 Supply of information to portfolio Minister 1
The provisions of section 29 (2) of the State Owned Corporations 2
Act 1989 do not apply to a transaction SOC. 3
Page 27
Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 3 Corporate conversion of electricity generators and transaction SOCs
Schedule 3 Corporate conversion of electricity 1
generators and transaction SOCs 2
(Section 9) 3
1 Direction for corporate conversion of electricity generators and 4
transaction SOCs 5
(1) The Treasurer may direct by order in writing (a corporate conversion 6
direction) that an electricity generator or transaction SOC be converted 7
into a company limited by shares of a specified type. 8
(2) An electricity generator cannot be the subject of a corporate conversion 9
direction unless it is an electricity generator on the date of assent to this 10
Act or is a transaction SOC. 11
2 Application for conversion to company 12
(1) An electricity generator to which a corporate conversion direction has 13
been given is authorised to apply to be registered under Part 5B.1 of the 14
Corporations Act as a company limited by shares of the type specified 15
in the direction. 16
(2) That application can only be made if the Treasurer has issued a 17
certificate to the corporation that certifies that the Treasurer is satisfied 18
that the provisions of this Act have been complied with concerning the 19
transfer of its incorporation to the Corporations Act. 20
(3) A certificate issued by the Treasurer for the purposes of this clause: 21
(a) cannot be challenged, reviewed or called into question in 22
proceedings before any court or tribunal, and 23
(b) is conclusive evidence in any proceedings before a court or 24
tribunal that all the requirements of this Act have been complied 25
with concerning the transfer of the incorporation of the 26
corporation to the Corporations Act. 27
3 Effect of conversion 28
(1) The following provisions are taken to have had effect immediately 29
before an electricity generator to which a corporate conversion direction 30
has been given is registered as a company under the Corporations Act: 31
(a) the corporation ceases to be a statutory State owned corporation 32
for the purposes of the State Owned Corporations Act 1989 or 33
any other State legislation, 34
(b) the corporation ceases to be an energy services corporation under 35
the Energy Services Corporations Act 1995 unless the 36
regulations provide otherwise, 37
Page 28
Electricity Generator Assets (Authorised Transactions) Bill 2012
Corporate conversion of electricity generators and transaction SOCs Schedule 3
(c) the voting shareholders (within the meaning of the State Owned 1
Corporations Act 1989) of the corporation cease to be members 2
of the corporation, 3
(d) the board of directors of the corporation is dissolved and each 4
member (including any acting member) of the board ceases to 5
hold office as such, 6
(e) any person who holds a statutory office of the corporation ceases 7
to hold that office, 8
(f) any person who ceases to be a member of the corporation or to 9
hold an office because of the operation of this subclause is not 10
entitled to any compensation for the loss of that membership or 11
office. 12
(2) Nothing in this clause prevents any person from becoming an officer of 13
the company into which the corporation is being converted in 14
accordance with its constitution and the provisions of the Corporations 15
Act. 16
(3) An electricity generator to which a corporate conversion direction has 17
been given becomes a transaction company for the purposes of this Act 18
only when it is registered as a company under the Corporations Act. 19
Page 29
Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 4 Vesting of assets, rights and liabilities
Schedule 4 Vesting of assets, rights and liabilities 1
(Section 13) 2
1 Definitions 3
In this Schedule: 4
transferee means the person or body in whom any assets, rights or 5
liabilities are vested by a vesting order. 6
transferor means the person or body from whom any assets, rights or 7
liabilities are divested by a vesting order. 8
vesting order means a vesting order under this Schedule. 9
2 Making of vesting order 10
The Treasurer may, by order (a vesting order), vest assets, rights and 11
liabilities of a public sector agency that is an electricity generator or 12
transaction entity in a person specified in the order as the transferee. 13
3 Vesting of assets, rights and liabilities in transferee 14
(1) When any assets, rights or liabilities are vested by a vesting order, the 15
following provisions have effect (subject to the vesting order): 16
(a) the assets vest in the transferee by virtue of this clause and 17
without the need for any conveyance, transfer, assignment or 18
assurance, 19
(b) the rights and liabilities become, by virtue of this clause, the 20
rights and liabilities of the transferee, 21
(c) all proceedings relating to the assets, rights or liabilities pending 22
by or against the transferor are taken to be proceedings pending 23
by or against the transferee, 24
(d) the transferee has all the entitlements and obligations of the 25
transferor in relation to the assets, rights and liabilities that the 26
transferor would have had but for the order, whether or not those 27
entitlements and obligations were actual or potential at the time 28
the order took effect, 29
(e) any act, matter or thing done or omitted to be done in relation to 30
the assets, rights or liabilities by, to or in respect of the transferor 31
is (to the extent that the act, matter or thing has any force or 32
effect) taken to have been done or omitted by, to or in respect of 33
the transferee, 34
(f) a reference in any Act, in any instrument made under any Act or 35
in any document of any kind to the transferor or a predecessor of 36
the transferor is (to the extent that it relates to those assets or 37
Page 30
Electricity Generator Assets (Authorised Transactions) Bill 2012
Vesting of assets, rights and liabilities Schedule 4
liabilities but subject to the regulations), to be read as, or as 1
including, a reference to the transferee. 2
(2) No attornment to the transferee by a lessee from the transferor is 3
required. 4
4 Terms and conditions of vesting 5
A vesting order may be made on such terms and conditions as are 6
specified in the order. 7
5 Consideration for vesting 8
A vesting order may specify the consideration for which a vesting to 9
which it applies is made and the value or values at which assets, rights 10
or liabilities are vested. 11
6 Date of vesting 12
A vesting order takes effect on the date it is made or on such other date 13
as may be specified in the order. 14
7 Vesting of interests in land 15
(1) A vesting order may vest an interest in respect of land vested in the 16
transferor without vesting the whole of the interests of the transferor in 17
that land. 18
(2) If the interest vested is not a separate interest, the order operates to 19
create the interest vested in such terms as are specified in the order. 20
(3) This clause does not limit any other provision of this Schedule. 21
8 Confirmation of vesting 22
(1) The Treasurer may by order in writing confirm a vesting of particular 23
assets, rights or liabilities by operation of this Schedule. 24
(2) Such an order is evidence of that vesting. 25
9 Determinations by Treasurer 26
For the purposes of the making of a vesting order, the Treasurer may 27
determine whether or not particular assets, rights or liabilities comprise 28
assets, rights or liabilities of an electricity generator or transaction entity 29
at a particular time, and such a determination is conclusive as to the 30
matters determined. 31
Page 31
Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 4 Vesting of assets, rights and liabilities
10 Certification to registration authorities 1
(1) In this clause: 2
registration authority means a person or body that has functions under 3
any law in connection with the keeping of a register in respect of assets, 4
rights or liabilities. 5
(2) A public sector agency that is the transferee or transferor under a vesting 6
order may lodge with a registration authority a certificate certifying as 7
to such information as may reasonably be required by the registration 8
authority to enable the registration authority to exercise any function of 9
the authority arising in connection with the vesting of any asset, right or 10
liability pursuant to the vesting order. 11
(3) Such a certificate is to be accepted and acted upon by the registration 12
authority and, despite any other law, the registration authority is not 13
entitled to require that the information concerned be provided to it in 14
any particular form or in any particular manner. 15
(4) No fee or charge is payable by the transferee to a registration authority 16
for or in respect of the exercise of any function by the registration 17
authority in connection with the vesting of an asset, right or liability by 18
a vesting order. 19
11 Evidence of orders and certificates 20
A document purporting to be a vesting order or an order or certificate 21
made or given under a provision of this Schedule is, unless the contrary 22
is established, taken to be such an order or certificate and to have been 23
properly made or given. 24
12 Public sector accounting policies 25
The Treasurer may give directions to public sector agencies for or with 26
respect to accounting policies to be applied by public sector agencies in 27
connection with the transfer between public sector agencies of assets, 28
rights and liabilities of an electricity generator or transaction entity for 29
the purposes of an authorised transaction (in place of public sector 30
accounting policies that would otherwise be applicable in respect of any 31
such transfer). 32
Page 32
Electricity Generator Assets (Authorised Transactions) Bill 2012
Ownership restrictions in floated transaction companies Schedule 5
Schedule 5 Ownership restrictions in floated 1
transaction companies 2
Part 1 Ownership restrictions 3
Note. Some of the terms and expressions used in this Part are defined in Part 5 (Interpretative 4
provisions) of this Schedule. 5
1 Maximum ownership level 6
(1) If electricity generator assets are transferred pursuant to an authorised 7
transaction by means of an initial public offer of shares in a transaction 8
company, this Schedule applies to impose ownership restrictions in 9
relation to the company. 10
(2) The maximum ownership level for the purposes of this Schedule is set 11
at the percentage prescribed by the regulations. 12
(3) This Schedule ceases to apply in relation to a transaction company at the 13
end of the period of 2 years (or such longer period may be prescribed by 14
the regulations as the period for which this Schedule is to apply to the 15
company) beginning on the day on which the company is first listed on 16
a stock exchange that is a prescribed financial market under the 17
Corporations Act. 18
(4) A regulation may not be made under this clause in respect of a company 19
after the commencement of the period during which an offer of shares 20
in the company (for the purposes of the initial public offer concerned) 21
can be accepted. 22
2 Meaning of "prohibited ownership situation" 23
For the purposes of this Schedule, a prohibited ownership situation 24
exists in relation to a floated transaction company and in relation to a 25
particular person if the person holds a particular type of stake in the 26
company of more than the maximum ownership level set by clause 1. 27
Note. A person's stake includes the interests of the person's associates--see 28
Part 5 of this Schedule. 29
3 Acquisition of shares that result in prohibited ownership situation 30
A person, or 2 or more persons under an arrangement, who acquire 31
shares in a floated transaction company are each guilty of an offence if: 32
(a) the acquisition has any of the following results: 33
(i) a prohibited ownership situation comes into existence in 34
relation to the company and in relation to a person, 35
Page 33
Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 5 Ownership restrictions in floated transaction companies
(ii)if a prohibited ownership situation already exists in 1
relation to the company and in relation to a person--there 2
is an increase in any type of stake held by the person in the 3
company, and 4
(b) the person or persons under the arrangement knew, or were 5
reckless as to whether, the acquisition would have that result. 6
Maximum penalty: 400 penalty units. 7
4 Floated transaction company to take reasonable steps to prevent 8
contraventions of ownership restrictions 9
(1) A floated transaction company must take all reasonable steps to ensure 10
that a prohibited ownership situation does not exist in relation to the 11
company. 12
(2) A floated transaction company is guilty of an offence if it engages in 13
conduct that contravenes a requirement of subclause (1). 14
Maximum penalty: 500 penalty units. 15
Note. If a floated transaction company contravenes this subclause, clause 22 16
operates to make each person who is a director of the company or who is 17
concerned in the management of the company liable for the offence if the 18
person knowingly authorised or permitted the contravention. 19
(3) An offence under subclause (2) is a strict liability offence. 20
5 Contravention of Part does not affect validity of acts 21
An act is not invalidated only because it constitutes an offence under 22
this Part. 23
Part 2 Location of Member Registers of floated 24
transaction companies 25
6 Member Register to be within the State 26
A floated transaction company must not, without the written approval 27
of the Treasurer: 28
(a) change the location where any Member Register of the company 29
is kept to a location that is outside of the territorial limits of the 30
State, or 31
(b) keep any Member Register of the company at a location that is 32
outside of the territorial limits of the State. 33
Maximum penalty: 500 penalty units. 34
Note. If a floated transaction company contravenes this clause, clause 22 35
operates to make each person who is a director of the company or who is 36
concerned in the management of the company liable for the offence if the 37
person knowingly authorised or permitted the contravention. 38
Page 34
Electricity Generator Assets (Authorised Transactions) Bill 2012
Ownership restrictions in floated transaction companies Schedule 5
Part 3 Records and information 1
7 Record-keeping and information giving 2
(1) The regulations may make provision for or with respect to requiring a 3
person: 4
(a) to keep and retain records, where the records are relevant to an 5
ownership matter, and 6
(b) to give information to the Treasurer or a floated transaction 7
company that is relevant to: 8
(i) an ownership matter, or 9
(ii) ascertaining whether Part 1 of this Schedule has been or is 10
being complied with. 11
(2) The regulations may provide that information given in accordance with 12
a requirement of regulations made for the purposes of subclause (1) (b) 13
must be verified by statutory declaration. 14
(3) A person is not excused from giving information in accordance with a 15
requirement of regulations made for the purposes of subclause (1) (b) 16
on the ground that the information may tend to incriminate the person 17
or expose the person to a penalty. 18
(4) However, any information obtained from a natural person in 19
compliance with a requirement of regulations made for the purposes of 20
subclause (1) (b) is not admissible against the person in criminal 21
proceedings other than proceedings for an offence under this clause. 22
(5) A person must keep records, and provide information, in compliance 23
with any requirements of regulations made for the purposes of 24
subclause (1) (b). 25
Maximum penalty: 50 penalty units. 26
(6) In this clause: 27
control includes control as a result of, or by means of, trusts, 28
agreements, arrangements, understandings and practices, whether or 29
not having legal or equitable force and whether or not based on legal or 30
equitable rights. 31
ownership matter means any of the following matters: 32
(a) whether a person holds a particular type of stake in a floated 33
transaction company and, if so, the level of that stake, 34
(b) whether the directors of a floated transaction company are 35
accustomed or under an obligation, whether formal or informal, 36
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 5 Ownership restrictions in floated transaction companies
to act in accordance with the directions, instructions or wishes of 1
a person (either alone or together with associates), 2
(c) whether a person (either alone or together with associates) is in a 3
position to exercise control over a floated transaction company. 4
Part 4 Remedial orders 5
8 Applications to Supreme Court for remedial orders 6
(1) If a prohibited ownership situation exists in relation to a floated 7
transaction company, the company or the Treasurer (or both) may apply 8
to the Supreme Court to make such orders as the Court considers 9
appropriate for the purpose of ensuring that the situation ceases to exist. 10
(2) Without limiting subclause (1), the Court may make any of the 11
following orders on any such application: 12
(a) an order directing the disposal of shares, 13
(b) an order restraining the exercise of any rights attached to shares, 14
(c) an order prohibiting or deferring the payment of any sums due to 15
a person in respect of shares held by the person, 16
(d) an order that any exercise of rights attached to shares be 17
disregarded. 18
(3) The Supreme Court may, before making an order under this clause, 19
direct that notice of the application be given to such persons as it thinks 20
fit or be published in such manner as it thinks fit, or both. 21
(4) A floated transaction company and its directors and secretary are 22
specifically authorised and required to ensure that any rights attached to 23
shares are not exercised in contravention of an order made under this 24
clause (including ensuring that meetings of the company are conducted 25
in accordance with requirements of any such order). 26
9 Injunctions 27
If a person has engaged, is engaging or is proposing to engage in any 28
conduct in contravention of this Schedule, the Supreme Court may, on 29
the application of a floated transaction company or the Treasurer (or 30
both), grant an injunction: 31
(a) restraining the person from engaging in the conduct, or 32
(b) requiring the person to do something. 33
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Ownership restrictions in floated transaction companies Schedule 5
Part 5 Interpretative provisions 1
10 Definitions 2
In this Schedule: 3
acquisition includes an agreement to acquire, but does not include: 4
(a) an acquisition by will or by devolution by operation of law, or 5
(b) an acquisition by way of enforcement of a loan security. 6
aggregate substantial interest, in relation to a trust estate, has the 7
meaning given by clause 20. 8
arrangement has the meaning given by clause 11. 9
associate has the meaning given by clause 12. 10
company means a body corporate. 11
constituent document, in relation to a company, means: 12
(a) the constitution of the company, or 13
(b) any rules or other documents constituting the company or 14
governing its activities. 15
contravene includes fail to comply with. 16
direct control interest has the meaning given by clause 19. 17
director includes any person occupying the position of director of a 18
company, by whatever name called. 19
discretionary trust means a trust where: 20
(a) a person (who may include the trustee) is empowered (either 21
unconditionally or on the fulfilment of a condition) to exercise 22
any power of appointment or other discretion, and 23
(b) the exercise of the power or discretion, or the failure to exercise 24
the power or discretion, has the effect of determining, to any 25
extent, either or both of the following: 26
(i) the identities of those who may benefit under the trust, 27
(ii) how beneficiaries are to benefit, as between themselves, 28
under the trust. 29
engage in conduct means do an act or omit to do an act. 30
floated transaction company means a transaction company in relation 31
to which the ownership restrictions set out in this Schedule apply. 32
increase, in relation to a stake in a company, includes an increase from 33
a starting point of nil. 34
interest in a share has the meaning given by clause 15. 35
lender, in relation to a loan security, means the person who is entitled 36
to enforce the security. 37
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 5 Ownership restrictions in floated transaction companies
lending money includes providing non equity finance where the 1
provision of the finance may reasonably be regarded as equivalent to 2
lending money. 3
loan security means a security held solely for the purposes of a 4
moneylending agreement. 5
Member Register of a company means a register of members of the 6
company kept under Chapter 2C of the Corporations Act. 7
moneylending agreement means an agreement entered into in good 8
faith in the ordinary course of carrying on a business of lending money, 9
but does not include an agreement dealing with any matter unrelated to 10
the carrying on of that business. 11
officer, in relation to a company, includes: 12
(a) a director, secretary or employee of the company, or 13
(b) a receiver and manager of any part of the undertaking of the 14
company appointed under a power contained in any instrument, 15
or 16
(c) a liquidator of the company appointed in a voluntary winding up. 17
power to appoint a director of a company has a meaning affected by 18
clause 13. 19
relative, in relation to a person, means: 20
(a) the person's spouse or the person's de facto partner (being the 21
other party to a de facto relationship, within the meaning of the 22
Property (Relationships) Act 1984, with the person), or 23
(b) a parent or remoter lineal ancestor of the person, or 24
(c) a child or remoter issue of the person, or 25
(d) a sibling of the person. 26
share, in relation to a company, means a share in the share capital of the 27
company, and includes an interest in such a share. 28
stake, in relation to a company, has the meaning given by clause 18. 29
substantial interest, in relation to a trust estate, has the meaning given 30
by clause 20. 31
voting power has the meaning given by clause 17. 32
11 Entering into an agreement or arrangement 33
(1) For the purposes of this Schedule, a person is taken to have proposed to 34
enter into an agreement or arrangement if the person takes part in, or 35
proposes to take part in, negotiations with a view to entering into the 36
agreement or arrangement. 37
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Ownership restrictions in floated transaction companies Schedule 5
(2) A reference in this Schedule to entering into an agreement or 1
arrangement includes a reference to altering or varying an agreement 2
or arrangement. 3
(3) A reference in this Schedule to entering into an arrangement is a 4
reference to entering into any formal or informal scheme, arrangement 5
or understanding, whether expressly or by implication and, without 6
limiting the generality of the foregoing, includes a reference to: 7
(a) entering into an agreement, or 8
(b) creating a trust, whether express or implied, or 9
(c) entering into a transaction, 10
and a reference in this Schedule to an arrangement is to be construed 11
accordingly. 12
(4) A reference in this Schedule to an arrangement does not include a 13
reference to a moneylending agreement. 14
12 Associates 15
(1) For the purposes of this Schedule, the following persons are, subject to 16
subclause (3), associates of a person: 17
(a) a relative of the person, 18
(b) a partner of the person, 19
(c) a company of which the person is an officer, 20
(d) if the person is a company--an officer of the company, 21
(e) an employee or employer of the person, 22
(f) an officer of a company of which the person is an officer, 23
(g) an employee of an individual of whom the person is an employee, 24
(h) the trustee of a discretionary trust where the person or another 25
person who is an associate of the person by virtue of another 26
paragraph of this subclause benefits, or is capable (whether by the 27
exercise of a power of appointment or otherwise) of benefiting, 28
under the trust, either directly or through any interposed 29
companies, partnerships or trusts, 30
(i) a company whose directors are accustomed or under an 31
obligation, whether formal or informal, to act in accordance with 32
the directions, instructions or wishes of the person, 33
(j) a company where the person is accustomed or under an 34
obligation, whether formal or informal, to act in accordance with 35
the directions, instructions or wishes of the company, 36
(k) a company in which the person has, apart from this paragraph, a 37
particular type of stake of not less than 15 percent, 38
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 5 Ownership restrictions in floated transaction companies
(l) if the person is a company--a person who holds, apart from this 1
paragraph, a particular type of stake in the company of not less 2
than 15 percent, 3
(m) a person who is, because of this subclause, an associate of any 4
other person who is an associate of the person (including a person 5
who is an associate of the person by any other application or 6
applications of this paragraph). 7
(2) If a person (the first person) enters, or proposes to enter, into an 8
arrangement with another person (the second person) that relates to any 9
of the following matters: 10
(a) the first person and the second person being in a position, by 11
acting together, to control any of the voting power in a company, 12
(b) the power of the first person and the second person, by acting 13
together, to appoint or remove a director of a company, 14
(c) the situation where one or more of the directors of a company are 15
accustomed or under an obligation, whether formal or informal, 16
to act in accordance with the directions, instructions or wishes of 17
the first person and the second person acting together, 18
the second person is taken to be an associate of the first person for the 19
purposes of the application of a provision of this Schedule in relation to 20
the matter concerned. 21
(3) The regulations may provide that, for the purposes of this Schedule, a 22
specified person (or class of persons) is not an associate of another 23
specified person (or class of persons). 24
13 Power to appoint director 25
(1) A reference in this Schedule to a power to appoint a director includes a 26
reference to such a power whether exercisable with or without the 27
consent or concurrence of any other person. 28
(2) For the purposes of this Schedule, a person is taken to have the power 29
to appoint a director if: 30
(a) the person has the power (whether exercisable with or without the 31
consent or concurrence of any other person) to veto such an 32
appointment, or 33
(b) a person's appointment as a director of the company follows 34
necessarily from that person being a director or other officer of 35
the first mentioned person. 36
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Ownership restrictions in floated transaction companies Schedule 5
14 Meaning of entitled to acquire 1
For the purposes of this Schedule, a person is entitled to acquire 2
anything if the person is absolutely or contingently entitled to acquire it, 3
whether because of any constituent document of a company, the 4
exercise of any right or option or for any other reason. 5
15 Meaning of interest in a share 6
(1) Subject to this clause, a person holds an interest in a share if the person 7
has any legal or equitable interest in the share. 8
(2) Without limiting subclause (1), a person is taken to hold an interest in a 9
share if: 10
(a) the person has entered into a contract to purchase the share, or 11
(b) the person has a right (otherwise than because of having an 12
interest under a trust) to have the share transferred to the person 13
or to the person's order (whether the right is exercisable presently 14
or in the future and whether or not on the fulfilment of a 15
condition), or 16
(c) the person has a right to acquire the share, or an interest in the 17
share, under an option (whether the right is exercisable presently 18
or in the future and whether or not on the fulfilment of a 19
condition), or 20
(d) the person is otherwise entitled to acquire the share or an interest 21
in the share, or 22
(e) the person is entitled (otherwise than because of having been 23
appointed as a proxy or representative to vote at a meeting of 24
members of the company or of a class of its members) to exercise 25
or control the exercise of a right attached to the share. 26
(3) A person is taken to hold an interest in a share even if the person holds 27
the interest in the share jointly with another person. 28
(4) For the purpose of determining whether a person holds an interest in a 29
share, it is immaterial that the interest cannot be related to a particular 30
share. 31
(5) An interest in a share is not to be disregarded only because of: 32
(a) its remoteness, or 33
(b) the manner in which it arose, or 34
(c) the fact that the exercise of a right conferred by the interest is, or 35
is capable of being made, subject to restraint or restriction. 36
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 5 Ownership restrictions in floated transaction companies
16 Certain interests and stakes to be disregarded 1
(1) For the purposes of this Schedule, the following interests and stakes 2
must be disregarded: 3
(a) an interest in a share held by a person whose ordinary business 4
includes the lending of money if the person holds the interest as 5
a loan security, 6
(b) an interest in a share held by a person, being an interest held by 7
the person because the person holds an office (or an office 8
belonging to a class of offices) prescribed by the regulations, 9
(c) an interest of a prescribed kind in a share, being an interest held 10
by such persons (or persons belonging to a class of persons) as are 11
prescribed by the regulations, 12
(d) an interest in a share held by the State or a public sector agency, 13
(e) a stake of a kind prescribed by the regulations in a company, 14
being a stake held by a person (or person belonging to a class of 15
persons) prescribed by the regulations. 16
(2) For the purposes of this Schedule, if: 17
(a) a person holds an interest in a share as a loan security, and 18
(b) the ordinary business of the person includes the lending of 19
money, and 20
(c) the loan security is enforced, and 21
(d) as a result of the enforcement of the loan security, the person 22
becomes the holder of the share, and 23
(e) the person holds the share for a continuous period (the holding 24
period) beginning at the time when the security was enforced, 25
the person's interest in the share must be disregarded at all times during 26
so much of the holding period as occurs during whichever of the 27
following periods is applicable: 28
(f) the period of 90 days beginning when the security was enforced, 29
(g) if the Treasurer, by written notice given to the person, allows a 30
longer period--the end of that longer period. 31
(3) For the purposes of this Schedule, if: 32
(a) a person acquires an interest in a share in a floated transaction 33
company, and 34
(b) the interest was acquired in the person's capacity as an 35
underwriter or a sub-underwriter in connection with the sale or 36
issue of shares in the company by or on behalf of a public sector 37
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Ownership restrictions in floated transaction companies Schedule 5
agency or the company (whether under an initial public offer of 1
the company or otherwise), 2
the person's interest in the share must be disregarded at all times during 3
whichever of the following periods is applicable: 4
(c) the period of 90 days beginning when the person acquired the 5
interest, 6
(d) if the Treasurer, by written notice given to the person, allows a 7
longer period--that longer period. 8
17 Voting power 9
(1) A reference in this Schedule to the voting power in a company is a 10
reference to the total rights of shareholders to vote, or participate in any 11
decision making, concerning any of the following: 12
(a) the making of distributions of capital or profits of the company to 13
its shareholders, 14
(b) the constituent document of the company, 15
(c) any variation of the share capital of the company. 16
(2) A reference in this Schedule to control of the voting power in a 17
company is a reference to control that is direct or indirect, including 18
control that is exercisable as a result of or by means of arrangements or 19
practices: 20
(a) whether or not having legal or equitable force, and 21
(b) whether or not based on legal or equitable rights. 22
(3) If the percentage of total rights to vote or participate in decision making 23
differs as between different types of voting or decision making, the 24
highest of those percentages applies for the purposes of this clause. 25
(4) If a company: 26
(a) is limited both by shares and by guarantee, or 27
(b) does not have a share capital, 28
this clause has effect as if the members or policy holders of the company 29
were shareholders in the company. 30
18 Stake in a company 31
(1) A particular type of stake that a person holds in a company at a 32
particular time is the aggregate of: 33
(a) the direct control interests in the company of that type that the 34
person holds at that time, and 35
(b) the direct control interests in the company of that type held at that 36
time by associates of the person. 37
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 5 Ownership restrictions in floated transaction companies
(2) In calculating the stake that a person holds in a company, a direct 1
control interest held because of clause 19 (5) is not to be counted under 2
subclause (1) (a) to the extent to which it is calculated by reference to a 3
direct control interest in the company that is taken into account under 4
subclause (1) (b). 5
19 Direct control interests in a company 6
(1) A person holds a direct control interest in a company at a particular 7
time equal to the percentage of the total paid-up share capital of the 8
company in which the person holds an interest at that time. 9
(2) A person also holds a direct control interest in a company at a particular 10
time equal to the percentage of the voting power in the company that the 11
person is in a position to control at that time. 12
(3) A person also holds a direct control interest in a company at a particular 13
time equal to the percentage that the person holds, or is entitled to 14
acquire, at that time of the total rights to distributions of capital or 15
profits of the company to its shareholders on winding up. 16
(4) A person also holds a direct control interest in a company at a particular 17
time equal to the percentage that the person holds, or is entitled to 18
acquire, at that time of the total rights to distributions of capital or 19
profits of the company to its shareholders, otherwise than on winding 20
up. 21
(5) If: 22
(a) a person holds a particular type of direct control interest 23
(including a direct control interest that is taken to be held because 24
of one or more previous applications of this subclause) in a 25
company (the first level company), and 26
(b) the first level company holds the same type of direct control 27
interest in another company (the second level company), 28
the person is taken to hold that type of direct control interest in the 29
second level company equal to the percentage worked out using the 30
formula: 31
first level percentage � second level percentage
where: 32
first level percentage means the percentage of the direct control interest 33
held by the person in the first level company. 34
second level percentage means the percentage of the direct control 35
interest held by the first level company in the second level company. 36
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Ownership restrictions in floated transaction companies Schedule 5
20 Substantial interests in trust estates 1
(1) For the purposes of this Schedule: 2
(a) a person is taken to hold a substantial interest in a trust estate if 3
the person, alone or together with an associate or associates, 4
holds a beneficial interest in not less than 15 percent of the corpus 5
or income of the trust estate, and 6
(b) 2 or more persons are taken to hold an aggregate substantial 7
interest in a trust estate if the persons, together with an associate 8
or associates, hold, in the aggregate, beneficial interests in not 9
less than 40 percent of the corpus or income of the trust estate. 10
(2) For the purposes of subclause (1), if, under the terms of a trust, a trustee 11
has a power or discretion as to the distribution of the income or corpus 12
of the trust estate to beneficiaries, each beneficiary is taken to hold a 13
beneficial interest in the maximum percentage of income or corpus of 14
the trust estate that the trustee is empowered to distribute to that 15
beneficiary. 16
Part 6 Miscellaneous 17
21 Displacement of Corporations legislation 18
The provisions of this Schedule are declared to be Corporations 19
legislation displacement provisions for the purposes of section 5G of the 20
Corporations Act in relation to the provisions of the Corporations 21
legislation generally. 22
22 Offences by corporations 23
(1) If a corporation contravenes, whether by act or omission, any provision 24
of this Schedule, each person who is a director of the corporation or who 25
is concerned in the management of the corporation is taken to have 26
contravened the same provision if the person knowingly authorised or 27
permitted the contravention. 28
(2) A person may be proceeded against and convicted under a provision 29
pursuant to subclause (1) whether or not the corporation has been 30
proceeded against or has been convicted under the provision. 31
(3) Nothing in this clause affects any liability imposed on a corporation for 32
an offence committed by the corporation under this Schedule. 33
23 Proceedings for offences 34
(1) Proceedings for an offence under this Schedule may be dealt with 35
summarily before the Local Court or before the Supreme Court in its 36
summary jurisdiction. 37
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 5 Ownership restrictions in floated transaction companies
(2) If proceedings for an offence to which this clause applies are brought in 1
the Local Court, the maximum penalty that the Court may impose in 2
respect of the offence is, despite any other provision of this Schedule, 3
$50,000 or the maximum penalty provided by this Schedule, whichever 4
is the lesser. 5
(3) If proceedings for an offence to which this clause applies are brought in 6
the Supreme Court in its summary jurisdiction, the Supreme Court may 7
impose a penalty not exceeding the maximum penalty provided by this 8
Schedule in respect of the offence. 9
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Savings, transitional and other provisions Schedule 6
Schedule 6 Savings, transitional and other 1
provisions 2
Part 1 General 3
1 Regulations 4
(1) The regulations may contain provisions of a savings or transitional 5
nature consequent on the enactment of this Act or any Act that amends 6
this Act. 7
(2) For the avoidance of doubt, any such provision may, if the regulations 8
so provide, have effect despite any specified provision of this Schedule. 9
(3) Any such provision may, if the regulations so provide, take effect from 10
the date of assent to the Act concerned or a later date. 11
(4) To the extent to which any such provision takes effect from a date that 12
is earlier than the date of its publication on the NSW legislation website, 13
the provision does not operate so as: 14
(a) to affect, in a manner prejudicial to any person (other than the 15
State or an authority of the State), the rights of that person 16
existing before the date of its publication, or 17
(b) to impose liabilities on any person (other than the State or an 18
authority of the State) in respect of anything done or omitted to 19
be done before the date of its publication. 20
Part 2 Provisions consequent on enactment of this 21
Act 22
2 Provisions relating to Shoalhaven or Warragamba electricity assets 23
(1) In this clause: 24
power station means electricity generating plant and the land on which 25
that plant is situated. A power station of an electricity generator is a 26
power station that is owned, controlled or operated by the electricity 27
generator. 28
private person means any person other than the Sydney Catchment 29
Authority, TransGrid or any other public sector agency. 30
Shoalhaven or Warragamba electricity assets means: 31
(a) any power stations or pumping stations located at or within 32
Kangaroo Valley by means of which Eraring Energy generates 33
electricity (including any associated pipelines, switching 34
stations, substations and transmission lines) but excluding all 35
other assets (including dams, pipelines, tunnels and channels) 36
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 6 Savings, transitional and other provisions
owned, maintained and operated by the Sydney Catchment 1
Authority at or within Kangaroo Valley, or 2
(b) any power station located at or within Warragamba Dam by 3
means of which Eraring Energy generates electricity (including 4
any associated pipelines, switching stations and substations). 5
(2) The Treasurer may: 6
(a) certify, by order in writing (a certification order), that any 7
specified assets, rights or liabilities that the Treasurer considers 8
are used for the purposes of, or in connection with, any 9
Shoalhaven or Warragamba electricity assets are the assets, rights 10
or liabilities of an electricity generator, TransGrid or other public 11
sector agency (a nominated public sector agency), and 12
(b) without limiting paragraph (a)--acquire, on behalf of the Crown, 13
any land (including any interest in land) by agreement or 14
compulsory process in accordance with the Land Acquisition 15
(Just Terms Compensation) Act 1991 that the Treasurer considers 16
is land that is used for the purposes of, or in connection with, any 17
Shoalhaven or Warragamba electricity assets. 18
(3) The following provisions apply in relation to any assets, rights or 19
liabilities that the Treasurer, by certification order, certifies to be the 20
assets, rights or liabilities of a nominated public sector agency: 21
(a) any of the assets, rights or liabilities that are not already the 22
assets, rights or liabilities of the agency (other than any assets, 23
rights or liabilities of a private person) are transferred to the 24
agency and, for this purpose, Schedule 4 (Vesting of assets, rights 25
and liabilities) applies in relation to the certification order as if it 26
were a vesting order under that Schedule having effect on the day 27
on which the certification order has effect, 28
(b) the certification order is evidence that the assets, rights or 29
liabilities specified in the order are the assets, rights or liabilities 30
of the agency. 31
(4) The following provisions apply in relation to any acquisition of land by 32
the Treasurer that is authorised by this clause: 33
(a) Division 1 (Pre-acquisition procedures) of Part 2 of the Land 34
Acquisition (Just Terms Compensation) Act 1991 does not apply 35
to such an acquisition, 36
(b) any owner of an interest in the land is not entitled to be paid 37
compensation (whether under the Land Acquisition (Just Terms 38
Compensation) Act 1991 or otherwise) if the land is acquired by 39
compulsory process and the owner is the Sydney Catchment 40
Authority or any other public sector agency, 41
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Savings, transitional and other provisions Schedule 6
(c) the land may be acquired even if any consent or permission 1
required under State legislation (other than under the Land 2
Acquisition (Just Terms Compensation) Act 1991) has not been 3
obtained or granted, 4
(d) land that is acquired may be transferred, by order of the Treasurer 5
in writing, to an electricity generator, TransGrid or other public 6
sector agency and Schedule 4 (Vesting of assets, rights and 7
liabilities) applies in relation to such an order. 8
(5) Without limiting section 20 (General relationship of Act with other 9
State legislation), the provisions of this clause (including the provisions 10
of any order made under this clause) have effect despite the following: 11
(a) the Crown Lands Act 1989 or any statutory rule or order made 12
under that Act (whether made before or after the commencement 13
of this clause), 14
(b) the Energy Services Corporations Act 1995 or any statutory rule 15
or order made under that Act (whether made before or after the 16
commencement of this clause), 17
(c) the Sydney Water Catchment Management Act 1998 (including, 18
without limitation, Division 2 of Part 5 of that Act) or any 19
statutory rule or order made under that Act (whether made before 20
or after the commencement of this clause). 21
(6) Nothing in this clause limits section 13 (Vesting orders). 22
3 Dissolution of electricity generators 23
(1) The Governor may, by proclamation, amend Part 1 of Schedule 1 to the 24
Energy Services Corporations Act 1995 by omitting the corporate name 25
of an electricity generator. 26
(2) On the day on which a proclamation under this clause takes effect: 27
(a) the electricity generator whose corporate name is omitted by the 28
proclamation is dissolved, and 29
(b) the State Owned Corporations Act 1989 is amended by omitting 30
that name from Schedule 5. 31
(3) Section 15 (Transfer of staff, assets, rights and liabilities of dissolved 32
energy services corporations) of the Energy Services Corporations Act 33
1995 applies in respect of the dissolution of an electricity generator by 34
proclamation under this clause in the same way as it applies to the 35
dissolution of an energy services corporation by that Act. 36
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Electricity Generator Assets (Authorised Transactions) Bill 2012
Schedule 7 Amendment of Subordinate Legislation Act 1989 No 146
Schedule 7 Amendment of Subordinate Legislation 1
Act 1989 No 146 2
Schedule 4 Excluded instruments 3
Insert at the end of the Schedule (with appropriate item number): 4
Regulations under the Electricity Generator Assets (Authorised 5
Transactions) Act 2012. 6
Page 50
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