AGL Corporate Conversion Act 2002 (NSW)

AGL Corporate Conversion Act 2002 No 16 An Act to provide for The Australian Gas Light Company to be constituted as a body corporate and to enable it to seek registration as a company under the Corporations Act 2001 of the Commonwealth; to make further provision in respect of shareholding limits in relation to the Company; to repeal and amend consequentially various Acts and other legislation; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the AGL Corporate Conversion Act 2002. 2 Commencement This Act commences on the date of assent to this Act. 3 Objects The objects of this Act are as follows— (a) to constitute AGL as a body corporate under the law of New South Wales with a modern corporate structure, (b) to authorise AGL, once incorporated, to apply to be registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth, (c) to amend the Gas Industry Restructuring Act 1986 to remove the 5% limit on shareholdings in AGL on its registration as a public company and, pending the removal of that limit, to strengthen the provisions relating to the enforcement of that limit. 4 Definitions (1) In this Act— AGL means the company of proprietors known by the name "The Australian Gas Light Company" that was originally established by the Australian Gas Light Company Act 1837. AGL legislation means the legislation referred to in section 15 (1). ASIC means the Australian Securities and Investments Commission. assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents. ASX Listing Rule means a Listing Rule of the Australian Stock Exchange Limited. board or managerial office has the same meaning as it has in section 9 of the Corporations Act 2001 of the Commonwealth. company limited by shares means a body corporate, whose principle, or one of whose principles, is that the liability of its member or members is limited to the amount (if any) unpaid on the shares respectively held by the member or members. compliance certificate means a certificate issued by the Minister under section 32 certifying that the provisions of this Act have been complied with concerning the transfer of corporatised AGL's incorporation to the Corporations Act 2001 of the Commonwealth. constitution means— (a) in relation to AGL, the following— (i) the AGL legislation, (ii) the provisions of the Gas Industry Restructuring Act 1986 relating to AGL as in force at the relevant time before the conversion day, (iii) any by-laws or resolutions relating to AGL made under that legislation or Act, and (b) in relation to corporatised AGL, the constitution of corporatised AGL as in force from time to time, and (c) in relation to registered AGL, the constitution of registered AGL as in force from time to time. conversion day means the day specified by the Minister in a conversion order as the day on which AGL is to be constituted as a body corporate under this Act. conversion order means an order made by the Minister under section 13 specifying a conversion day. conversion resolution—see section 8. Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act 2001 of the Commonwealth applies. corporatised AGL means AGL after it is constituted as a body corporate under this Act. instrument means an instrument (other than this Act or an instrument made under this Act) or any other document that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order, process or other instrument issued by a court or tribunal. Note— The Interpretation Act 1987 provides that a reference in an Act to document means any record of information, and includes— (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing or photograph. invalidity order—see section 11 (1). liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable). matter includes act, omission, body, person or thing. preserved resolution—see section 5. proprietors of AGL means persons who are proprietors of AGL under the constitution of AGL. registered AGL means corporatised AGL after it is registered as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth. registration day means the day on which corporatised AGL is registered as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth. Editorial note— Registration day: 11.10.2002. For further information see the Australian Securities and Investments Commission website at http://www.asic.gov.au. registration resolution—see section 9. rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable). Secretary of AGL means the person holding office as the Secretary of AGL from time to time under the constitution of AGL. (2) If this Act provides for an event or other thing to occur on the conversion day or registration day, that event or thing is taken to occur at the beginning of the day that is the conversion day or registration day. However, if the conversion day is the same day as the registration day, any event or other thing to occur on the registration day is taken to have occurred immediately after any event or other thing to occur on the conversion day. (3) A reference in this Act to the Australian Gas Light Company Act 1837 is a reference to the Act passed in 1837 entitled "An Act for lighting with Gas the Town of Sydney in the Colony of New South Wales and to enable certain persons associated under the name style and firm of 'The Australian Gas-light Company' to sue and be sued in the name of the Secretary for the time being of the said Company and for other purposes therein mentioned", as amended by subsequent Acts. (4) Words and expressions used in this Act have the same meanings as in section 9 of the Corporations Act 2001 of the Commonwealth, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires. (5) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit. (6) Notes included in this Act do not form part of this Act. 5 Preserved resolutions (1) In this Act— consolidated published constitution means the publication entitled The Australian Gas Light Company: Constituent documents, ISBN 0-9580690-0-X, published by AGL in March 2002. preserved resolution means any of the following resolutions of the proprietors of AGL that was in force under the constitution of AGL immediately before the conversion day— (a) the resolution referred to in the consolidated published constitution as R1/1985 relating to non-executive directors' retiring allowances, (b) the resolution referred to in the consolidated published constitution as R5A/1987 relating to the AGL Management Share Plan, (c) the resolution referred to in the consolidated published constitution as R1/1988 relating to the AGL Employee Share Plan, (d) the resolution referred to in the consolidated published constitution as R8/1992 relating to the AGL Share Investment Plan, (e) the resolution referred to in the consolidated published constitution as R3/1997 relating to the AGL Share Reward Plan, (f) the resolution referred to in the consolidated published constitution as R4/1997 relating to the AGL Share Purchase Plan, (g) the resolution referred to in the consolidated published constitution as R5/1997 relating to the AGL Share Loan Plan, (h) the resolution referred to in the consolidated published constitution as R1/1998 relating to The Australian Gas Light Company Dividend Re-investment Plan, (i) the resolution referred to in the consolidated published constitution as R1/2000 relating to remuneration of non-executive directors, (j) such other resolutions of the proprietors of AGL as may be prescribed by the regulations. (2) A regulation referred to in subsection (1) (j) may be made before, on or after the conversion day. 6 (Repealed) Part 2 Overview of the corporatisation and registration of AGL as a public company 7 Summary of the steps involved in corporatisation and registration of AGL as a company (1) The conversion of AGL into an incorporated public company limited by shares will involve the following two steps— Conversion of AGL into a body corporate The first step will be to convert AGL into a body corporate under State law. Currently, AGL is an unincorporated company of proprietors that was originally established by the Australian Gas Light Company Act 1837. Registration of corporatised AGL as a company The second step will be to enable corporatised AGL to seek registration as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth. (2) The following is a summary of the steps involved in the conversion of AGL into a body corporate under State law— Conversion resolution The proprietors of AGL must pass a conversion resolution at a general meeting of AGL in accordance with Division 1 of Part 3 that approves both the conversion of AGL into a body corporate and a new constitution for that body corporate. Order specifying conversion day The Minister makes a conversion order under section 13 specifying the day on which AGL is to be constituted as a body corporate under this Act. AGL constituted as body corporate AGL will be constituted as a body corporate with the name "The Australian Gas Light Company" on the conversion day as provided by Part 4. Existing legislation relating to the constitution of AGL and related gas companies will be repealed on that day. (3) The following is a summary of the steps involved in enabling corporatised AGL to be registered as a public company limited by shares under Part 5B.1 of the Corporations Act 2001 of the Commonwealth— Registration resolution The proprietors of AGL or the members of corporatised AGL must pass a registration resolution at a general meeting of AGL or corporatised AGL (as the case may be) in accordance with Division 2 of Part 3 that resolves that corporatised AGL be registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth. Compliance certificate The Minister issues a compliance certificate under section 32 to the effect that the provisions of this Act concerning the transfer of corporatised AGL's incorporation have been complied with. Application for registration as public company Corporatised AGL makes an application to ASIC under Part 5B.1 of the Corporations Act 2001 of the Commonwealth to be registered as a public company limited by shares. Registration as public company limited by shares Corporatised AGL is registered by ASIC under Part 5B.1 of the Corporations Act 2001 of the Commonwealth as a public company limited by shares. (4) This section does not affect the meaning or interpretation of any provision of this Act that it summarises. Part 3 Conversion and registration resolutions Division 1 Conversion resolutions 8 What is a conversion resolution? (1) For the purposes of this Act, a conversion resolution is a resolution passed in accordance with this section by the proprietors of AGL at a general meeting of AGL that— (a) resolves that AGL be constituted as a body corporate under this Act, and (b) approves a constitution for AGL on its conversion into a body corporate. (2) A constitution approved by a conversion resolution may contain any matter that could be included in the constitution of a public company limited by shares under the Corporations Act 2001 of the Commonwealth. (3) A resolution is passed in accordance with this section only if— (a) the resolution is passed by at least 50% of the votes cast by the proprietors of AGL (whether present in person or by proxy) who are eligible to vote at the general meeting, and (b) subject to paragraph (a)—the general meeting at which the resolution is put is called and held in accordance with the constitution of AGL. (4) A conversion resolution may form part of a composite resolution that, among other things (if any), includes a registration resolution. (5) A conversion resolution may be expressed to be subject to such conditions as may be specified in the resolution. If a conversion resolution is subject to any such conditions, it does not have effect as a conversion resolution for the purposes of any provision of this Act (other than this section) until the conditions are satisfied. (6) A resolution passed by the proprietors of AGL before the date of assent to this Act that would have been a conversion resolution for the purposes of this section if it had been in force at the time the resolution was passed is taken to be a conversion resolution for the purposes of this section. (7) Nothing in this Act prevents a further proposal for the conversion of AGL into a body corporate being put to the proprietors of AGL if a previously proposed conversion resolution was not passed or was declared to be invalid by order of the Supreme Court under section 11. Division 2 Registration resolutions 9 What is a registration resolution? (1) For the purposes of this Act, a registration resolution is a resolution passed in accordance with this section by the proprietors of AGL at a general meeting of AGL or by the members of corporatised AGL at a general meeting of corporatised AGL (as the case may be) that resolves that corporatised AGL be registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth. (2) A resolution is passed in accordance with this section only if— (a) the resolution is passed by at least 50% of the votes cast by the proprietors of AGL or members of corporatised AGL (whether present in person or by proxy) who are eligible to vote at the general meeting, and (b) subject to paragraph (a)—the general meeting at which the resolution is put is called and held in accordance with the constitution of AGL or corporatised AGL (as the case may be). (3) A registration resolution may, but need not, be passed at the same general meeting at which a conversion resolution is passed. (4) A registration resolution may form part of a composite resolution that, among other things (if any), includes a conversion resolution. (5) A registration resolution may be expressed to be subject to such conditions as may be specified in the resolution. If a registration resolution is subject to any such conditions, it does not have effect as a registration resolution for the purposes of any provision of this Act (other than this section) until the conditions are satisfied. (6) The members of corporatised AGL will be taken on and after the conversion date to have consented to the transfer of corporatised AGL's incorporation in accordance with the terms of a registration resolution passed by the proprietors of AGL unless a further resolution passed in accordance with this section revoking the registration resolution is passed by those members before the registration day. Note— Section 14 provides that corporatised AGL is a continuation of, and the same legal entity as, AGL. Also, section 18 (1) (b) provides that a person who, immediately before the conversion date, was a proprietor of AGL is taken to be a member of corporatised AGL. (7) If a further resolution revoking a registration resolution is passed by the members of corporatised AGL as referred to in subsection (6), the registration resolution ceases to have effect as a registration resolution for the purposes of this Act. (8) A resolution passed by the proprietors of AGL before the date of assent to this Act that would have been a registration resolution for the purposes of this section if it had been in force at the time the resolution was passed is taken to be a registration resolution for the purposes of this section. (9) Nothing in this Act prevents a further proposal for a registration resolution being put to the proprietors of AGL or members of corporatised AGL if— (a) a previously proposed registration resolution was not passed or was declared to be invalid by order of the Supreme Court under section 11, or (b) an application for registration under Part 5B.1 of the Corporations Act 2001 of the Commonwealth was not made by corporatised AGL within the prescribed period applicable to the resolution under section 31. Division 3 Judicial review of conversion and registration resolutions 10 Application of this Division This Division applies to the following resolutions (applicable resolutions)— (a) any conversion resolution or purported conversion resolution, (b) any registration resolution or purported registration resolution. 11 Irregularities concerning conversion and registration resolutions (1) Procedural irregularity does not invalidate resolution without court order An applicable resolution is not invalidated because of any procedural irregularity unless, on an application made under this section, the Supreme Court by order declares the resolution to be invalid (an invalidity order). (2) Who may apply for invalidity order An application to the Supreme Court for an invalidity order under this section may be made only if no fewer than 200 persons who were eligible to vote at the meeting at which the applicable resolution was passed make the application. (3) Time for application for order Such an application can only be made to the Supreme Court within— (a) if the resolution was passed before the date of assent to this Act—the period of 7 days commencing on the date of assent to this Act, or (b) if the resolution was passed on or after the date of assent to this Act—the period of one month commencing on the date of the passing of the resolution. (4) Parties to an application The parties to any such application are as follows— (a) the applicants, (b) AGL or corporatised AGL (as the case may be), (c) the Minister. (5) When Supreme Court may make invalidity order The Supreme Court must not make an invalidity order unless it is of the opinion that— (a) the irregularity was not, or was not the result of, an accidental omission or non-receipt of a notice required under the constitution of AGL or corporatised AGL (as the case may be), and (b) the irregularity has caused or may cause substantial injustice. (6) Supreme Court may enjoin Minister from making conversion order or issuing compliance certificate The Supreme Court may, of its own motion or on the application of a party to an application for an invalidity order in relation to an applicable resolution, make an order that enjoins the Minister from making a conversion order or issuing a compliance certificate (as the case may be) in relation to the resolution until the application for the invalidity order is determined by the Court. (7) Minister may make conversion order or issue compliance certificate if not enjoined The Minister may make a conversion order or issue a compliance certificate in relation to an applicable resolution even if it is the subject of an application for an invalidity order, unless the Minister is enjoined from doing so under subsection (6). Any such order or certificate is to be treated in the proceedings for the invalidity order as having the same effect as it would have had if no application for the invalidity order had been made. Note— Section 13 (5) provides that a conversion order is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the conversion of AGL into a body corporate. Similarly, section 32 (4) provides that a compliance certificate is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the transfer of the incorporation of corporatised AGL to the Corporations Act 2001 of the Commonwealth as a public company limited by shares. (8) Effect of invalidity order on conversion orders or compliance certificates If the Supreme Court makes an invalidity order in relation to an applicable resolution— (a) in the case of a conversion resolution or purported conversion resolution—the Minister cannot make a conversion order in relation to the resolution, and (b) in the case of a registration resolution or purported registration resolution—the Minister cannot issue a compliance certificate in relation to the resolution. (9) Rules of court may be made Rules of court (not inconsistent with this Act or the regulations) may be made under the Supreme Court Act 1970 for the purposes of this section. This subsection does not limit the rule-making powers conferred by the Supreme Court Act 1970. (10) Meaning of procedural irregularity In this section, a reference to a procedural irregularity includes a reference to— (a) any defect, irregularity or deficiency of notice or time, and (b) any miscalculation of voting entitlements. Part 4 Conversion of AGL into body corporate Division 1 Constitution of AGL as a body corporate 12 AGL constituted as body corporate on conversion day (1) On the conversion day, AGL is constituted as a body corporate by this Act with the corporate name of "The Australian Gas Light Company". (2) The body corporate constituted by this Act is a company limited by shares. Note— This Part makes provision in relation to the corporate structure of corporatised AGL and its assets, rights and liabilities. It also applies certain provisions of the Corporations legislation to corporatised AGL as if it were a public company limited by shares. 13 Order specifying conversion day (1) The Minister may, by order published in the Gazette, specify a day on which AGL is to be constituted as a body corporate under this Act (the conversion day). Editorial note— Day AGL specified to be constituted as a body corporate: 11.10.2002. See order published in Gazette No 163 of 4.10.2002, p 8622. (2) The Minister may make an order under this section on the application of AGL only if the Minister is satisfied that— (a) a conversion resolution has been passed by the proprietors of AGL in accordance with the provisions of this Act, and (b) the period specified in section 11 for the making of an application for an invalidity order in respect of the resolution has expired, and (c) an invalidity order has not been made by the Supreme Court under section 11 in respect of the resolution. (3) The day specified in an order under this section must be no earlier than the day on which the order is published in the Gazette. (4) An order under this section cannot be challenged, reviewed or called into question in proceedings before any court or tribunal. (5) An order under this section is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the conversion of AGL into a body corporate. (6) The Minister cannot make an order under this section in relation to a conversion resolution if the Minister is enjoined from doing so by the Supreme Court under section 11 (6). Note— Section 11 (7) provides that the Minister may make a conversion order in relation to a conversion resolution even if it is the subject of an application for an invalidity order, unless the Minister is enjoined from doing so under section 11 (6). Division 2 Provisions consequent on conversion of AGL into body corporate Subdivision 1 General 14 Corporatised AGL is continuation of AGL (1) Subject to the provisions of this Part and to the fullest extent possible, corporatised AGL is taken for all purposes, including the rules of private international law, to be a continuation of the same company, and the same legal entity, as AGL. (2) Without limiting subsection (1), the conversion of AGL into a body corporate by this Act does not constitute a dissolution or termination of AGL. Accordingly, AGL is not required to wind up its affairs or pay its liabilities and distribute its assets as a result of the operation of this Act. 15 (Repealed) Subdivision 2 Specific transitional matters 16 Assets, rights and liabilities of AGL taken to be assets, rights and liabilities of corporatised AGL (1) The provisions of Schedule 3 apply to AGL's assets, rights and liabilities on and from the conversion day. Note— Schedule 3 makes provision for AGL's assets, rights and liabilities to become the assets, rights and liabilities of corporatised AGL. (2) In this section— AGL's assets, rights and liabilities means— (a) the assets of AGL— (i) vested in the Secretary of AGL on behalf of AGL (whether under the AGL legislation or otherwise), or (ii) purportedly vested in the name of AGL instead of the Secretary of AGL, immediately before the conversion day, and (b) any right or liability of AGL, and (c) any right or liability enforceable by or against the Secretary of AGL under the AGL legislation or otherwise in his or her capacity as Secretary of AGL. Note— The AGL legislation provides for the real and personal property of AGL to be vested in the Secretary of AGL. 17 Preserved resolutions of AGL to continue to have effect after conversion day (1) Any preserved resolution continues to have effect on and after the conversion day as if it were a resolution of the members of corporatised AGL passed on the conversion day in relation to corporatised AGL, with such modifications as are necessary or that are prescribed by the regulations. (2) A regulation referred to in subsection (1) may be made before, on or after the conversion day. (3) If a regulation referred to in paragraph (j) of the definition of preserved resolution in section 5 (1) is made after the conversion day but before the registration day in relation to a resolution of the proprietors of AGL, subsection (1) is taken to have applied to that resolution on and from the conversion day. (4) If a regulation modifying a preserved resolution referred to in subsection (1) is made after the conversion day but before the registration day, subsection (1) is taken to have applied to that resolution in its modified form on and from the conversion day. (5) A preserved resolution has no effect to the extent to which it is inconsistent with this Act or any provision of the constitution of corporatised AGL. (6) A preserved resolution may be varied or revoked by resolution of the members of corporatised AGL, subject to any applicable provisions of any law or the constitution of corporatised AGL. 18 Share capital and shareholdings in corporatised AGL (1) On the conversion day— (a) subject to Schedule 4, the amount of share capital of corporatised AGL is taken to be the same as the total issued share capital of AGL immediately before the conversion day and the share capital is taken to be comprised of the same number of shares as AGL had on issue immediately before the conversion day, and (b) a person who, immediately before the conversion day, was a proprietor of AGL is taken to be a member of corporatised AGL, and (c) each person who, immediately before the conversion day, held shares in AGL under the constitution of AGL is taken to hold the same number of ordinary shares in corporatised AGL as the person held in AGL and is taken to have acquired them at the same time as the person acquired the shares in AGL, and (d) any amount on any of the shares of AGL that was unpaid immediately before the conversion day is taken to be an amount that is unpaid on the corresponding shares in corporatised AGL, and (e) the provisions of Schedule 4 have effect in relation to shares in AGL that had a par value immediately before the conversion day. (2) This section has effect subject to the provisions of the constitution of corporatised AGL and Division 3. 19 Officers and employees of AGL taken to be officers and employees of corporatised AGL (1) Any person who, immediately before the conversion day, was an officer of AGL is taken on and after that day— (a) to hold the same, or the corresponding, office in corporatised AGL, and (b) to hold that office on the same terms and conditions as the office the person held in AGL immediately before that day. (2) Any person who, immediately before the conversion day, was an employee of AGL is taken on or after that day to be an employee of corporatised AGL on the same terms and conditions as under the person's contract of employment with AGL immediately before that day. (3) The terms and conditions of employment of any employee referred to in subsection (2) may, after the conversion day, be changed in the same way as they could have been before the conversion day. (4) The service with AGL of an employee referred to in subsection (2) is taken to be service with corporatised AGL for all purposes and the employee's accrued entitlements with AGL are taken to be accrued entitlements with corporatised AGL. (5) An employee referred to in subsection (2) is not entitled to payment (including, without limitation, any payment in lieu of leave or any damages or other compensation, whether under legislation, contract or otherwise) arising out of, or resulting from, the operation of this Act. (6) Nothing in this section affects the continued application of any industrial instrument under the Industrial Relations Act 1996 to the employment of an employee referred to in subsection (2). 20 Contracts and arrangements with AGL (1) On and after the conversion day, corporatised AGL is entitled to the benefit and subject to the burden of, and taken to be a party to, any contract or arrangement entered into by AGL (or by a person on behalf of AGL) with any person and having force immediately before the conversion day. (2) Nothing in this section limits the operation of section 19. 21 Construction of references to AGL and AGL legislation (1) On and after the conversion day, a reference in any instrument (other than the Gas Industry Restructuring Act 1986) to— (a) AGL, or (b) the Secretary of AGL (but only when acting on behalf of AGL), is to be read as including a reference to corporatised AGL. (2) A reference in any instrument (other than an Act or an instrument made under an Act) to any AGL legislation is to be read on and after the conversion day as including a reference to this Act. (3) Nothing in this section limits the operation of clause 2 (1) (f) of Schedule 3. 22 Accounts