Australian Jockey and Sydney Turf Clubs Merger Act 2010 (NSW)

Australian Jockey and Sydney Turf Clubs Merger Act 2010 No 93 An Act to facilitate the merger of Australian Jockey Club Limited and the Sydney Turf Club; to make continuing provision in relation to the operation of Randwick Racecourse and certain other racecourses; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Australian Jockey and Sydney Turf Clubs Merger Act 2010. 2 Commencement (1) This Act commences on the date of assent to this Act, except as provided by this section. (2) Schedule 3 commences on a day or days to be appointed by proclamation. (3) A day may not be appointed for the commencement of a provision of Schedule 3 that is earlier than the merger finalisation day. 3 Objects of Act The objects of this Act are as follows: (a) to facilitate the merger of the AJC and the STC into a new racing club incorporated under the Corporations Act (including by making provision for the transfer of certain assets, rights and liabilities and employees to the merged racing club), (b) to make provision in relation to the corporate governance of the merged racing club, (c) to provide for the functions of the merged racing club in relation to Randwick Racecourse and certain other racecourses, (d) to provide for the granting of further leases over Randwick Racecourse, (e) to provide for the repeal of the Australian Jockey Club Act 2008 and the Sydney Turf Club Act 1943, (f) to make provision for matters of a savings or transitional nature, (g) to make consequential amendments to certain other Acts and statutory instruments. 4 Interpretation (1) Definitions In this Act: AJC means Australian Jockey Club Limited (ACN 130 406 852). 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. club rules means: (a) in relation to the former AJC—the document entitled the Constitutional Rules of the Australian Jockey Club, as in force from time to time, and (b) in relation to the AJC—the constitution of the company and any other document issued by the AJC that contains rules concerning membership of the company, as in force from time to time, and (c) in relation to the STC—the regulations for the Sydney Turf Club set out in the First Schedule to the Sydney Turf Club Act 1943, as in force from time to time, and (d) in relation to the merged racing club—the constitution of the club and any other document issued by the club containing rules concerning membership of the club, as in force from time to time. company has the same meaning as it has in the Corporations Act. constitution, in relation to the merged racing club or any other company, has the same meaning as constitution of a company has in the Corporations Act. Corporations Act means the Corporations Act 2001 of the Commonwealth. exercise a function includes perform a duty. former AJC means the club that was known as the Australian Jockey Club as referred to in the repealed Australian Jockey Club Act 1873. function includes a power, authority or duty. general law means the common law and equity (as modified from time to time by legislation). 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. 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 of a legislature (whether enacted or made in Australia or elsewhere). liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable). mandatory corporate governance provisions—see section 5. merged racing club means a company that is declared to be the merged racing club for the purposes of this Act by an order made by the Minister under section 8, and includes its successors and permitted assigns. merger finalisation day means the day specified as the merger finalisation day for the purposes of this Act by an order made by the Minister under section 8. modification includes addition, exception, omission or substitution. previous club means any of the following: (a) the former AJC, (b) the AJC, (c) the STC. power includes an authority. racecourse has the same meaning as it has in the Betting and Racing Act 1998. Randwick Racecourse means: (a) the land comprised in Certificate of Title Folio Identifier 1/130234, and (b) the land comprised in Certificate of Title Folio Identifier 1642/752011, and (c) the land comprised in Certificate of Title Folio Identifier 1588/752011, and includes any buildings, structures, fixtures, fittings and other improvements on that land. Randwick Racecourse lease means any of the following: (a) any lease of Randwick Racecourse granted to the merged racing club by the Trust under section 33, (b) any lease of Randwick Racecourse granted to the AJC under section 10 of the Australian Jockey Club Act 2008 that, by operation of Division 2 of Part 2, is vested in the merged racing club. regulatory authorisation means any licence, permit, consent, entitlement, accreditation or other authority under State legislation. rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable). State legislation means any legislation of the State. STC means the Sydney Turf Club incorporated under the Sydney Turf Club Act 1943. the State means New South Wales. Trust means the Randwick Racecourse Trust constituted by this Act. Trustee means a trustee referred to in section 27B. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) When events or other things occur 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. (3) Notes Notes included in this Act do not form part of this Act. 5 Mandatory corporate governance provisions (1) For the purposes of this Act: (a) the mandatory corporate governance provisions are the provisions set out in Schedule 1, and (b) the constitution of a company includes the mandatory corporate governance provisions if the constitution of the company includes provisions in the same terms as, or to the effect of, the mandatory corporate governance provisions. (2) The constitution of a company does not cease to include the mandatory corporate governance provisions merely because it includes additional provisions, so long as those additional provisions are not inconsistent with the mandatory corporate governance provisions. (3) An alteration of the constitution of a company including the mandatory corporate governance provisions that omits or otherwise alters those provisions does not result in the constitution ceasing to include the mandatory corporate governance provisions if the Minister has consented to the alteration under section 9. (4) Any matter in Schedule 1 appearing in a note headed "Incorporation instruction" does not form part of the mandatory corporate governance provisions. Any matter inserted or omitted by reference to an Incorporation instruction is a permitted change to the mandatory corporate governance provisions. Part 2 Merger of AJC and STC Division 1 Establishment of merged racing club 6 Inclusion of mandatory corporate governance provisions in constitution of proposed merged racing club (1) The inclusion of the mandatory corporate governance provisions in the constitution of a company that is being (or has been) established for the purpose of becoming the merged racing club is specifically authorised. (2) The merged racing club is specifically authorised to carry on its affairs in accordance with the mandatory corporate governance provisions included in its constitution. (3) Nothing in this section limits the power of the merged racing club to conduct its affairs in accordance with other provisions that it has included in its constitution, so long as those other provisions are not inconsistent with the mandatory corporate governance provisions included in its constitution. Note— See, in particular, section 5G (4) and (11) of the Corporations Act and the declaration made in relation to this section by section 44 (1) of this Act. 7 Financial arrangements for racecourse improvements (1) The Minister is authorised, on behalf of the State, to enter into an arrangement with the relevant parties for the provision of financial assistance for the purpose of making improvements to Randwick Racecourse and Rosehill Gardens Racecourse. (2) The following are specifically authorised by this Act for the purposes of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code of New South Wales: (a) any arrangement entered into under subsection (1), (b) the conduct of the Minister, any relevant party or any agent in negotiating and entering into any such arrangement, (c) the conduct of any party to the arrangement (including the Minister) or any agent in giving effect to the arrangement. (3) Anything authorised to be done by subsection (2) is authorised only to the extent to which it would otherwise contravene Part IV of the Competition and Consumer Act 2010 of the Commonwealth or the Competition Code of New South Wales. (4) In this section: arrangement includes agreement and understanding. giving effect to an arrangement includes: (a) complying with any obligation under the arrangement, and (b) exercising or enforcing any right or power under the arrangement. relevant parties means each of the following: (a) Racing New South Wales, (b) TAB Limited (ACN 081 765 308), (c) the merged racing club (or a company that the Minister anticipates will be declared to be the merged racing club under section 8). Rosehill Gardens Racecourse means the racecourse known as Rosehill Gardens Racecourse that was owned by the STC at the time this Act was enacted, and includes: (a) the Rosehill Gardens Event Centre, and (b) any other buildings, structures, fixtures, fittings and other improvements on the racecourse. 8 Recognition of merger (1) The Minister may, by order published in the Gazette, declare a company to be the merged racing club for the purposes of this Act. (2) The Minister may make an order under subsection (1) in relation to a company only if the following pre-conditions are met: (a) the company is taken under section 119A of the Corporations Act to be registered in the State, (b) a copy of the constitution of the company has been provided to the Minister, (c) the Minister is satisfied that the constitution of the company includes the mandatory corporate governance provisions. (3) The Minister may specify a day as the merger finalisation day for the purposes of this Act: (a) in an order made under subsection (1), or (b) by a subsequent order published in the Gazette. (4) The day on which a declaration made by an order under subsection (1) takes effect is the day on which the order is published in the Gazette or such later day as may be specified in the order. (5) The only limits on the jurisdiction of the Minister to make orders under this section are: (a) in relation to the making of an order under subsection (1)—that the pre-conditions for the making of the order set out in subsection (2) are met, and (b) in relation to the making of an order under subsection (3) (b)—that an order under subsection (1) has previously been made. (6) The making of an order under this section cannot be challenged, reviewed or called into question in proceedings before any court or tribunal except on the grounds that the making of the order exceeds the jurisdictional limits specified by subsection (5) for the making of such an order. Editorial note— Club specified as the merged racing club: Australian Turf Club Limited ACN 148 157 288. See Gazette No 12 of 4.2.2011, p 543. Day specified as the merger finalisation day: 7.2.2011. See Gazette No 12 of 4.2.2011, p 543. 9 Alteration of mandatory corporate governance provisions of merged racing club constitution (1) An alteration to the constitution of the merged racing club that would operate to omit or otherwise alter any of the mandatory corporate governance provisions included in the constitution does not have effect unless the Minister gives written consent to the alteration. Note— See, in particular, section 5G (10) and (11) of the Corporations Act and the declaration made in relation to this section by section 44 (1) of this Act. (2) The Minister may not give consent to such an alteration unless the Minister considers that the alteration does not result in the provisions of the constitution of the merged racing club being inconsistent with the mandatory corporate governance provisions. 10 Appointment of directors of merged racing club (1) Appointment of independent and club appointed directors of first board The following bodies and person are specifically authorised to appoint the 9 directors of the first board of the merged racing club as follows: (a) the board of directors of the AJC is to appoint 3 of the directors, (b) the board of directors of the STC is to appoint 3 of the directors, (c) the Minister is to appoint 3 of the directors (the independent directors) on the recommendation of a selection panel constituted under this section (an appointments selection panel). Note— See, in particular, section 5G (4) and (11) of the Corporations Act and the declaration made in relation to this section by section 44 (1) of this Act. (2) When appointing their 3 directors to the first board of the merged racing club, the boards of directors of the AJC and STC are each to designate in the instrument of appointment of one of their appointees that the appointee is the club's short-term appointment. Note— The short-term appointment of the boards of directors of the AJC or STC will hold office for only 12 months while the other directors appointed by the boards will hold office for 4 years. See clause 4 of the mandatory corporate governance provisions for the merged racing club in Schedule 1. (3) Appointment of replacement independent directors The Minister is specifically authorised, on the recommendation of an appointments selection panel, to appoint a person to replace an independent director whenever the office of an independent director becomes vacant. (4) Persons not eligible to be appointed A person is not eligible to be appointed as an independent director if the person: (a) is an employee of a race club or racing association, or (b) is or was a member of the appointments selection panel constituted to recommend the appointment, or (c) is a member of the governing body of a race club or eligible industry body (including a director of the AJC or STC), or (d) holds a licence issued by Racing New South Wales or by a racing association, or (e) is registered by or with the Greyhound Welfare and Integrity Commission under the Greyhound Racing Act 2017 or Harness Racing New South Wales under the Harness Racing Act 2009, or (f) is currently, or during the previous 10 years has been, warned off, disqualified or named on the Forfeit List under the Australian Rules of Racing, or (g) during the previous 10 years has been convicted in the State of an offence that is punishable by imprisonment for 12 months or more, or convicted elsewhere than in the State of an offence that, if committed in the State, would be an offence so punishable, or (h) is an undischarged bankrupt or is taking advantage of the laws in force for the time being relating to bankruptcy, or (i) is a mentally incapacitated person. (5) Recommendations by appointments selection panel The Minister is to constitute an appointments selection panel to recommend persons for appointment as independent directors and to recommend the terms of office of independent directors. (6) An appointments selection panel: (a) in the case of the appointment of an independent director to the first board of the merged racing club—is to be constituted by the following persons: (i) a person nominated by the Chairperson of Racing New South Wales, (ii) a person nominated by the board of directors of the AJC, (iii) a person nominated by the board of directors of the STC, and (b) in the case of the appointment of an independent director to replace another independent director who has vacated office—is to be constituted by the following persons: (i) a person nominated by the Chairperson of Racing New South Wales, (ii) a director of the merged racing club nominated by the board of directors of the club who is an independent director, (iii) a director of the merged racing club nominated by the board of directors of the club who is not an independent director. (7) An appointments selection panel must recommend only the number of persons required to be appointed (no more and no fewer) and, subject to subsection (8), must recommend a term of office for each person recommended. (8) The term of office for an independent director that an appointments selection panel may recommend is: (a) in the case of an appointment to the first board of the merged racing club—4 years, and (b) in the case of an appointment to fill a casual vacancy—the balance of the term of the independent director who is being replaced, and (c) in the case of any other appointment—such period as the panel considers appropriate (being a period not exceeding 4 years). (9) Selection criteria and probity checks An appointments selection panel must not recommend a person for appointment as an independent director unless the panel is satisfied that the person has experience in a senior administrative role or experience at a senior level in one or more of the fields of business, finance, law, marketing, technology, commerce, regulatory administration or regulatory enforcement. (10) Before recommending a person for appointment as an independent director, the appointments selection panel must conduct a probity check of the person (with the level of scrutiny as determined by the Minister). The Minister is to appoint a Probity Adviser to assist the selection panel to conduct probity checks. (11) An appointments selection panel is to choose between candidates for recommendation for appointment as an independent director on the basis of merit, with merit to be determined on the basis of a candidate's abilities, qualifications, experience and personal qualities that are relevant to the performance of the duties of a director of the merged racing club. (12) Appointments before company declared to be merged racing club Any function conferred or imposed by or under this section in relation to the appointment of directors to the first board of the merged racing club may be exercised even if at the time the function is exercised no company has been formed for the purposes of being declared to be, or no company has been declared to be, the merged racing club under section 8. Any function so exercised is to be taken to have been duly exercised for the purposes of this section and the mandatory corporate governance provisions included in the constitution of a company. (13) Independent directors who are members of race clubs to have membership voting entitlements suspended If a person who is appointed as an independent director is also a member of a race club, the race club is specifically required to suspend the person's voting entitlements as a member of the race club while the person remains an independent director despite anything to the contrary in the constitution or other membership rules of the club. (14) Definitions In this section: Australian Rules of Racing has the same meaning as it has in the Thoroughbred Racing Act 1996. eligible industry body has the same meaning as it has in the Thoroughbred Racing Act 1996. race club has the same meaning as it has in the Thoroughbred Racing Act 1996. racing association has the same meaning as it has in the Thoroughbred Racing Act 1996. Division 2 Transfer of business undertakings and employees of AJC and STC to merged racing club 11 Operation of Division This Division operates, on and from the merger finalisation day, specifically (and in accordance with the requirements of this Division): (a) to transfer the transferable business undertakings and the employees of the AJC and STC to the merged racing club, and (b) to confer or impose other rights and liabilities on the merged racing club and certain other persons in connection with the transfer of the transferable business undertakings. Note— See, in particular, section 5G (4), (5) and (11) of the Corporations Act and the declaration made in relation to this Division by section 44 (1) of this Act. 12 Interpretation (1) In this Division: conduct includes any act or omission. member means: (a) in relation to the AJC—a member of the AJC under its club rules and includes any person who was previously a member of the former AJC under its club rules, and (b) in relation to the STC—a member of the STC within the meaning of the Sydney Turf Club Act 1943. officer means: (a) in relation to the AJC—a director or secretary of that company within the meaning of the Corporations Act and includes any person who was previously a Chairman of the Committee of the former AJC or any other member of that Committee, and (b) in relation to the STC—a director of the STC within the meaning of the Sydney Turf Club Act 1943. transferable assets means: (a) all of the assets vested (whether absolutely or contingently or in full or in part) in, or otherwise held by, the AJC immediately before the merger finalisation day (including any lease of Randwick Racecourse granted to the AJC under the Australian Jockey Club Act 2008), and (b) all of the assets vested (whether absolutely or contingently or in full or in part) in, or otherwise held by, the STC immediately before the merger finalisation day. transferable business undertakings means all of the following: (a) the transferable assets, (b) the transferable rights, (c) the transferable liabilities, (d) the transferable regulatory authorisations. transferable liabilities means all of the liabilities of the AJC and the STC immediately before the merger finalisation day. transferable regulatory authorisations means all regulatory authorisations in force that are held by or on behalf of the AJC or STC immediately before the merger finalisation day, including (without limitation) each of the following: (a) any licence held by or on behalf of the AJC or STC that is in force under the Liquor Act 2007, (b) any poker machine entitlements or licences held by or on behalf of the AJC or STC under the Gaming Machines Act 2001, (c) any licence held by or on behalf of the AJC or STC that is in force under the Betting and Racing Act 1998, (d) any licence held by or on behalf of the AJC or STC that is in force under the Totalizator Act 1997. transferable rights means all of the rights of the AJC and the STC immediately before the merger finalisation day. (2) A reference in this Division to the Australian Jockey Club Act 2008 or the Sydney Turf Club Act 1943 is a reference to that Act before it ceases to have effect under section 39. (3) A reference in this Division (however expressed) to the assets, rights or liabilities of the AJC includes a reference to: (a) any assets, rights or liabilities of the former AJC that became the assets, rights or liabilities of the AJC by virtue of the operation of Part 3 of the Australian Jockey Club Act 2008 (including any assets, rights or liabilities vested in or held by, or exercisable by or against, an officer of the former AJC and to which section 23 of that Act applied immediately before the merger finalisation day), and (b) any potential assets, rights or liabilities of the former AJC that would have become the assets, rights or liabilities of the AJC by virtue of the operation of Part 3 of the Australian Jockey Club Act 2008 had that Part continued in force. 13 Vesting of assets in merged racing club (1) The transferable assets vest in, and become the assets of, the merged racing club by virtue of this section on the merger finalisation day: (a) without the need for any further conveyance, transfer, assignment or assurance, and (b) free of any estate or interest that any member of the AJC or STC may have had in the assets immediately before the merger finalisation day by reason of being a member. (2) Without limiting subsection (1), any lease of Randwick Racecourse granted to the AJC under the Australian Jockey Club Act 2008 that is in force immediately before the merger finalisation day vests in the merged racing club as lessee on that day for the remainder of the period of the lease (and subject to the same conditions and restrictions that applied in relation to the lease immediately before that day) and without the need for the consent of the Randwick Racecourse trustees (within the meaning of this Act as originally enacted). (3) No attornment to the merged racing club by a lessee or sublessee from the AJC or STC is required. 14 Transfer of transferable regulatory authorisations (1) Each of the transferable regulatory authorisations (an original regulatory authorisation) becomes a regulatory authorisation of the merged racing club (the transferred regulatory authorisation) on the merger finalisation day for the purposes of the State legislation under which the original regulatory authorisation was issued (the relevant State legislation). (2) A transferred regulatory authorisation: (a) has effect as if it had been issued to the merged racing club for the remainder of the period (if any) for which the original regulatory authorisation was issued, unless it is sooner cancelled, forfeited, surrendered or otherwise ceases to have effect under the relevant State legislation, and (b) is subject to the same terms, conditions and endorsements as the original regulatory authorisation until those terms, conditions or endorsements are altered, varied or revoked in accordance with the relevant State legislation. (3) The provisions of the Registered Clubs Act 1976 and the Liquor Act 2007 (and of the regulations made under those Acts) apply in relation to the merged racing club subject to the following modifications: (a) the rules referred to in section 30 (1) (a) and (b) of the Registered Clubs Act 1976 do not apply in relation to the merged racing club, (b) section 32 (1) of the Registered Clubs Act 1976 does not prevent the club from having more than one secretary and, in particular, from having one secretary approved under section 33 of that Act for the purposes of that Act and a different secretary or chief executive officer for the club in its capacity as a company, (c) section 34 (3A) of the Registered Clubs Act 1976 does not operate to make a person or the club guilty of an offence against section 34 (2) of that Act if the person is acting as a secretary or chief executive officer for the club in its capacity as a company and another person has been approved as the secretary for the club in its capacity as a registered club, (d) section 66 (2) (a) of the Liquor Act 2007 is to be read as being confined to the secretary of the club approved for the purposes of the Registered Clubs Act 1976, (e) such modifications as may be prescribed by the regulations (being modifications that relate to the operation of this Division). Note— Section 41J (Disposal by registered club of real property) of the Registered Clubs Act 1976 has no operation in relation to the transfer of the AJC's or STC's core property by operation of this Division because the disposal has been effected by this Division rather than by the AJC or STC. (4) The Minister is not to recommend the making of a regulation for the purposes of subsection (3) (e) unless the Minister administering the Act or regulations proposed to be modified has consented to the modification concerned. (5) The person or body (a regulatory body) that has the function under the relevant State legislation of issuing regulatory authorisations of the same kind as a transferred regulatory authorisation must, at the request of the merged racing club, re-issue the transferred regulatory authorisation in the name of the merged racing club (with substantially the same terms, conditions and endorsements as the transferred regulatory authorisation). (6) No fee or charge is payable by the merged racing club to a regulatory body for or in respect of the exercise of any function by the regulatory body in connection with the transfer or re-issue of a regulatory authorisation by operation of, or under, this section. (7) In this section: issued includes given. 15 Transferable rights and liabilities become those of merged racing club (1) The transferable rights become, by virtue of this section, the rights of the merged racing club on the merger finalisation day and may be exercised without regard to any fetters on the exercise of those rights that were enforceable by any member of the AJC or STC immediately before the merger finalisation day by reason of being a member. (2) The transferable liabilities become, by virtue of this section, the liabilities of the merged racing club on the merger finalisation day. (3) Without limiting subsection (2), any indemnity granted (or taken to have been granted) by or on behalf of the AJC or STC to an officer of the AJC or STC before the merger finalisation day with respect to conduct in his or her capacity as such is enforceable against the merged racing club on and from the merger finalisation day as if the merged racing club had granted the indemnity. 16 Updating of certain references to AJC or STC and transfer of contractual rights and obligations (1) Subject to subsection (2) and the regulations, on and from the merger finalisation day any reference in any instrument to the AJC, the STC or an officer of the AJC or STC while acting on behalf of the AJC or STC is (to the extent to which it relates to any part of the transferable business undertakings) to be read as a reference to the merged racing club. (2) Subsection (1) does not apply in relation to any reference of the kind referred to in that subsection in any Act or other statutory inst