New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
James Hardie (Civil Penalty
Compensation Release) Bill 2005
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Construction of legislation so as not to exceed
legislative power 4
Part 2 Extinguishment of certain liability
Division 1 General
5 Application of Part 6
6 Meaning of "protected conduct" 6
Division 2 Extinguishment of liability
7 Liability in relation to protected conduct extinguished 7
8 When liability extinguished 7
James Hardie (Civil Penalty Compensation Release) Bill 2005
Contents
Page
Division 3 Revival of liability
9 Revival of extinguished liability 8
10 Effect of revival of extinguished liability 9
11 Effect of revocation of reviving order 9
Division 4 Displacement of Corporations legislation
12 Displacement of Corporations legislation 9
Part 3 Miscellaneous
13 Relationship with James Hardie (Civil Liability) Act 2005 11
14 Regulations 11
Contents page 2
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
James Hardie (Civil Penalty
Compensation Release) Bill 2005
Act No , 2005
An Act to provide for the extinguishment of certain liability of companies and other
persons associated with the James Hardie corporate group to pay compensation in
connection with civil penalties; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 James Hardie (Civil Penalty Compensation Release) Bill 2005
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the James Hardie (Civil Penalty Compensation Release)
Act 2005.
2 Commencement
This Act commences on the date of assent to this Act.
3 Definitions
(1) In this Act:
ABN 60 means the company registered under the Corporations Act
immediately before the introduction day as ABN 60 Pty Limited
(ACN 000 009 263) that was formerly called James Hardie Industries
Limited, and includes any successor to or continuation of that company.
ABN 60 Foundation means the company registered under the
Corporations Act immediately before the introduction day as ABN 60
Foundation Limited (ACN 106 266 611), and includes any successor to
or continuation of that company.
Amaba means the company registered under the Corporations Act
immediately before the introduction day as Amaba Pty Limited
(ACN 000 387 342) that was formerly called Jsekarb Pty Limited, and
includes any successor to or continuation of that company.
Amaca means the company registered under the Corporations Act
immediately before the introduction day as Amaca Pty Limited
(ACN 000 035 512) that was formerly called James Hardie & Coy Pty
Limited, and includes any successor to or continuation of that company.
assent day means the day on which this Act received the Royal Assent.
Compensation Foundation means the company registered under the
Corporations Act immediately before the introduction day as the
Medical Research and Compensation Foundation (ACN 095 924 137),
and includes any successor to or continuation of that company.
Corporations Act means the Corporations Act 2001 of the
Commonwealth.
Corporations legislation means the Corporations legislation to which
Part 1.1A of the Corporations Act applies.
exercise a function includes perform a duty.
Final Funding Agreement has the same meaning as it has in the James
Hardie Former Subsidiaries (Winding up and Administration) Act
2005.
Page 2
James Hardie (Civil Penalty Compensation Release) Bill 2005 Clause 3
Preliminary Part 1
function includes a power, authority or duty.
general law means the common law and equity.
Heads of Agreement means the Heads of Agreement entered into on
21 December 2004 by the following persons and bodies:
(a) James Hardie Industries NV,
(b) the State,
(c) the Australian Council of Trade Unions,
(d) Unions New South Wales,
(e) Mr Bernie Banton as the designated representative of the
Asbestos Victims Groups named in Schedule 1 to the Heads of
Agreement.
introduction day means the day on which the Bill for this Act was first
introduced into Parliament.
Jackson Inquiry means the Special Commission of Inquiry that was
commissioned, by Letters Patent dated 27 February 2004 and 30 June
2004, to inquire into and report on certain matters relating to the
establishment of the Compensation Foundation.
Jackson Inquiry Report means the report issued by the Jackson Inquiry
on 21 September 2004 entitled "Report of the Special Commission of
Inquiry into the Medical Research and Compensation Foundation".
James Hardie Industries NV means the foreign company incorporated
in the Netherlands registered under the Corporations Act immediately
before the introduction day as James Hardie Industries NV (ARBN 097
829 895), and includes such successors to or continuations of that
company, or other entities having obligations under the Final Funding
Agreement, as may be prescribed by the regulations.
legislation includes:
(a) any statute of a legislature (whether enacted or made in Australia
or elsewhere), and
(b) any proclamation, regulation, rule, by-law, order or any other
kind of subordinate legislation (however described) made under
the authority of a statute (whether enacted or made in Australia
or elsewhere).
liable entity means each of the following:
(a) ABN 60,
(b) Amaba,
(c) Amaca.
Related Agreement means any agreement as in force from time to time
that is entered into (whether before, during or after the assent day) as
contemplated by the terms of the Final Funding Agreement.
Page 3
Clause 4 James Hardie (Civil Penalty Compensation Release) Bill 2005
Part 1 Preliminary
the 2001 Deed of Covenant and Indemnity means the Deed of
Covenant and Indemnity executed in February 2001 by:
(a) James Hardie Industries Limited (which was subsequently
renamed as ABN 60), and
(b) Jsekarb Pty Limited (which was subsequently renamed as
Amaba), and
(c) James Hardie & Coy Pty Limited (which was subsequently
renamed as Amaca).
the 2003 Deed of Covenant, Indemnity and Access means the Deed of
Covenant, Indemnity and Access executed by James Hardie Industries
NV and ABN 60 in March 2003, as amended by the Deed of
Rectification executed by those parties on 3 February 2004.
the State means the State of New South Wales.
(2) In this Act, the following terms have the meanings given in section 9 of
the Corporations Act:
ACN
ARBN
company
director
foreign company
officer
(3) If this Act provides for an event or other thing to occur on a particular
day, that event or thing is taken to occur at the beginning of that day.
(4) Notes included in this Act do not form part of this Act.
4 Construction of legislation so as not to exceed legislative power
(1) Unless a contrary intention appears, if a provision of this Act or an
instrument made under this Act:
(a) would, apart from this section, have an invalid application, but
(b) also has at least one valid application,
it is the intention of the Parliament of New South Wales that the
provision is not to have the invalid application, but is to have every valid
application.
(2) Despite subsection (1), the provision is not to have a particular valid
application if:
(a) apart from this section, it is clear, taking into account the
provision's context and the purposes or objects underlying this
Act, that the provision was intended to have that valid application
only if every invalid application, or a particular invalid
Page 4
James Hardie (Civil Penalty Compensation Release) Bill 2005 Clause 4
Preliminary Part 1
application, of the provision had also been within the legislative
power of the Parliament of New South Wales, or
(b) the provision's operation in relation to that valid application
would be different in a substantial respect from what would have
been its operation in relation to that valid application if every
invalid application of the provision had been within the
legislative power of the Parliament of New South Wales.
(3) Subsection (2) does not limit the cases in which a contrary intention
may be taken to appear for the purposes of subsection (1).
(4) This section is in addition to, and not in derogation of, section 31 of the
Interpretation Act 1987.
(5) In this section:
application means an application in relation to:
(a) one or more particular persons, things, matters, places,
circumstances or cases, or
(b) one or more classes (however defined or determined) of persons,
things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application
because of which the provision exceeds the legislative power of the
Parliament of New South Wales.
valid application, in relation to a provision, means an application
which, if it were the provision's only application, would be within the
legislative power of the Parliament of New South Wales.
Page 5
Clause 5 James Hardie (Civil Penalty Compensation Release) Bill 2005
Part 2 Extinguishment of certain liability
Part 2 Extinguishment of certain liability
Division 1 General
5 Application of Part
(1) This Part applies to liability (including a liability imposed by or under
legislation) to pay compensation for loss or damage resulting from
conduct that is capable of being the subject of a pecuniary penalty of a
civil nature imposed by or under legislation.
(2) This Part applies to such a liability whether or not the conduct
concerned is actually the subject of such a pecuniary penalty.
(3) The provisions of this Part apply despite the provisions of any other
legislation or any other law (whether written or unwritten).
6 Meaning of "protected conduct"
For the purposes of this Part, protected conduct is anything done or
omitted to be done in connection with any of the following:
(a) the transfer of the assets of, and the payment of dividends and
management fees by, any liable entity, that is set out in Part 3 of
the Jackson Inquiry Report,
(b) the establishment and funding and underfunding of the
Compensation Foundation and the Medical Research and
Compensation Foundation Trust (including announcements or
other representations made in relation to the effect or
consequences of the establishment or funding),
(c) the transfer of assets from ABN 60 to James Hardie Industries
NV, the establishment in 2001 of the ABN 60 Foundation and the
ABN 60 Foundation Trust and the allotment of shares in ABN 60
to the ABN 60 Foundation,
(d) the corporate reorganisation of the James Hardie group of
companies on 15 February 2001 (including announcements or
other representations made in relation to the effect or
consequences of the reorganisation),
(e) the corporate reorganisation of the James Hardie group of
companies between August and October 2001, including without
limitation:
(i) the scheme of arrangement approved by the Supreme
Court in October 2001 under which James Hardie
Industries NV became the holding company for the James
Hardie group of companies, and
Page 6
James Hardie (Civil Penalty Compensation Release) Bill 2005 Clause 7
Extinguishment of certain liability Part 2
(ii) announcements or other representations made in relation
to the effect or consequences of that scheme (including
representations made to the Supreme Court),
(f) the entry into the 2001 Deed of Covenant and Indemnity and the
2003 Deed of Covenant, Indemnity and Access and the
amendment of the 2003 Deed of Covenant, Indemnity and
Access by the Deed of Rectification executed by the parties to it
on 3 February 2004,
(g) the issue by ABN 60 of shares in ABN 60 to James Hardie
Industries NV and the cancellation of those shares in March
2003.
Note. The matters referred to in paragraphs (a)-(g) are described in the
Jackson Inquiry Report.
Division 2 Extinguishment of liability
7 Liability in relation to protected conduct extinguished
(1) Any liability to which this Part applies that is incurred (whether before,
during or after the assent day) by any of the following persons in respect
of any protected conduct of the person is extinguished:
(a) any liable entity,
(b) the Compensation Foundation,
(c) James Hardie Industries NV,
(d) any controlled entity of James Hardie Industries NV,
(e) any person who engaged in the conduct in the person's capacity
as a director or other officer, employee, advisor or agent of:
(i) any liable entity, or
(ii) the Compensation Foundation, or
(iii) any controlled entity of James Hardie Industries NV, or
(iv) James Hardie Industries NV.
(2) In this section, controlled entity of James Hardie Industries NV has the
same meaning as it has in section 32 of the James Hardie Former
Subsidiaries (Winding up and Administration) Act 2005.
8 When liability extinguished
Liability that is extinguished by section 7 is extinguished:
(a) if the liability accrues during or before the assent day (but subject
to paragraph (c))--on the assent day, or
Page 7
Clause 9 James Hardie (Civil Penalty Compensation Release) Bill 2005
Part 2 Extinguishment of certain liability
(b) if the liability accrues after the assent day (but subject to
paragraph (c))--on the day on which the liability accrues, or
(c) if the liability was revived under Division 3 and then
extinguished again under this Division as referred to in section
11 (1) (b)--on the day on which the order that revived the
liability is revoked by a revoking order under section 9.
Division 3 Revival of liability
9 Revival of extinguished liability
(1) A liability extinguished by operation of Division 2 may be revived as
provided by this section, but not if the liability is a liability of a natural
person.
(2) The Minister may, at any time, by order published in the Gazette (a
reviving order) declare that specified liability, or a specified class of
liability, extinguished by operation of Division 2 is revived on a day
specified in the order. That day must not be earlier than 14 days after the
day on which the reviving order is published in the Gazette.
(3) A reviving order may not be made if the making of the order would
constitute a breach by the State of the terms of the Final Funding
Agreement or a Related Agreement.
Note. An exercise of the power to make a reviving order in a manner that
breaches the Final Funding Agreement or a Related Agreement may also
render the State liable to pay damages. See Part 3 of the James Hardie (Civil
Liability) Act 2005.
(4) Any person whose liability is revived (or purportedly revived) by a
reviving order (or purported reviving order) may not claim or otherwise
assert in any proceedings that the order or purported order was not
validly made unless the Minister is, or is subsequently joined as, a party
to the proceedings.
(5) A reviving order operates to revive the liability concerned on the day
specified by the order.
(6) The Minister may, by order published in the Gazette (a revoking order),
revoke a reviving order on a day specified in the order.
(7) Without limiting subsection (6), the Minister must revoke a reviving
order as soon as is reasonably practicable after the Minister becomes
aware of the cessation of the breach or breaches of the Final Funding
Agreement by another party to the Agreement that occasioned the
reviving order.
(8) A revoking order may be published before, during or after the day fixed
by the reviving order for the revival of the liability concerned.
Page 8
James Hardie (Civil Penalty Compensation Release) Bill 2005 Clause 10
Extinguishment of certain liability Part 2
(9) The revocation of a reviving order does not prevent publication of a
further reviving order.
(10) More than one reviving or revoking order may be made under this
section.
10 Effect of revival of extinguished liability
If extinguished liability is revived under this Division:
(a) the liability is taken for all purposes never to have been
extinguished and is enforceable accordingly by any person for
whose benefit the liability accrues, and
(b) any limitation period applicable to a cause of action for the
liability is taken to have stopped running on the day on which the
liability was extinguished and to have recommenced to run on the
day on which the liability is revived.
11 Effect of revocation of reviving order
(1) If a reviving order under section 9 is revoked by a revoking order under
that section, the revoking order has the following effect:
(a) if it is published before or during the day fixed by the reviving
order for the revival of a specified liability--the reviving order is
taken never to have been published and, accordingly, the
specified liability is not revived,
(b) if it is published after the day fixed by the reviving order for the
revival of a specified liability--the reviving order ceases to have
effect on the day on which it is revoked and, accordingly,
Division 2 operates (subject to subsection (2)) to extinguish again
the specified liability.
(2) Subsection (1) (b) does not operate to apply Division 2 to liability in
respect of which proceedings were commenced before a court or other
tribunal while the liability was revived if those proceedings are still
pending immediately before the publication of the revoking order.
Division 4 Displacement of Corporations legislation
12 Displacement of Corporations legislation
Divisions 1-3 are declared to be Corporations legislation displacement
provisions for the purposes of section 5G of the Corporations Act in
relation to the Corporations legislation generally.
Note. Section 5G (11) of the Corporations Act provides that if a State law
declares a provision of a State law to be a Corporations legislation displacement
provision, any provision of the Corporations legislation with which the State
provision would otherwise be inconsistent does not apply to the extent
necessary to avoid the inconsistency.
Page 9
Clause 12 James Hardie (Civil Penalty Compensation Release) Bill 2005
Part 2 Extinguishment of certain liability
However, section 5G (3) of that Act provides that section 5G will only apply to a
provision of a law of a State or Territory enacted after the commencement of
that Act if a law of the State or Territory declares the provision to be a
Corporations legislation displacement provision for the purposes of that section.
Page 10
James Hardie (Civil Penalty Compensation Release) Bill 2005 Clause 13
Miscellaneous Part 3
Part 3 Miscellaneous
13 Relationship with James Hardie (Civil Liability) Act 2005
The provisions of this Act are in addition to, and do not derogate from,
the provisions of the James Hardie (Civil Liability) Act 2005.
14 Regulations
The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
Page 11
[Index] [Search] [Download] [Related Items] [Help]