South Australian Current Acts South Australian Current Acts26—Limitation on cross-ownership
(1) A person has a
"cross-ownership interest" if the person simultaneously has—
(a) an
interest in the container terminal at Outer Harbor, Port Adelaide, situated on
the land designated as Title B in the plans in Schedule 1; and
(b) an
interest—
(i)
in a container terminal in the Port of Melbourne,
Victoria, that annually handles 25 per cent or more (by mass) of the container
freight handled in that port; or
(ii)
in a container terminal in the Port of Fremantle, Western
Australia, that annually handles 25 per cent or more (by mass) of the
container freight handled in that port.
(2) A person has an
"interest" in a container terminal if the person—
(a) has
an interest in the land, buildings, structures or equipment that constitute
the terminal; or
(b) has
an interest in the operation or management of the container terminal; or
(c) has
a right to share in profits derived from the operation of the container
terminal.
(3) A person is taken
to have an interest in a particular asset if an associate of the person has an
interest in that asset.
(4) Two persons are
"associates" of each other if—
(a) they
are related bodies corporate within the meaning of the Corporations Law ; or
(b) one
is a body corporate and the other is a director or secretary of the body
corporate; or
(c) they
are members of the same partnership or joint venture; or
(d) one
is a trustee and the other is a beneficiary of the same trust; or
(e)
there is an agreement, arrangement or understanding (whether enforceable or
not) under which—
(i)
one acts in accordance with the directions, instructions
or wishes of the other; or
(ii)
if one or both are bodies corporate—a majority of
the directors of one act in accordance with the directions, instructions or
wishes of the other,
(other than an agreement, arrangement or understanding entered into in the
ordinary course of business for the supply of goods or services); or
(f) the
regulations declare them to be associates for the purposes of this Act; or
(g) a
chain of associations can (by applying any one or more of the above
provisions) be traced between them through another person or another persons.
(5) If a person has a
cross-ownership interest that, in the opinion of the Minister, may result in
the container terminal not being managed or operated in the best interests of
the State, the Minister may, by notice in writing given to the person or to
the person and an associate of the person, require the divestiture of assets,
within a reasonable period specified in the notice, to the extent considered
necessary by the Minister to avoid that result.
(6) Before exercising
a power under subsection (5), the Minister must—
(a) give
the person or the person and the associate (as the case requires) at least 21
days notice in writing of the proposed requirement for divestiture and the
reasons for the proposed requirement; and
(b)
allow the person or the person and the associate (as the case requires) a
reasonable opportunity to show cause why the requirement for divestiture
should not be imposed and to provide supporting documents and other
information (verified by statutory declaration if required by the Minister).
(7) If a person fails
to comply with a notice under subsection (5), the Minister may, by
subsequent notice in writing to the person, confiscate assets that have not
been divested as required.
(8) A person to whom
notice is given under subsection (5) or subsection (7) may, within
21 days, apply to the Supreme Court for judicial review of the decision
to give the notice.