Gas Industry Restructuring Act 1986 (NSW)

Gas Industry Restructuring Act 1986 No 213 An Act to make provision with respect to the supply and consumption of gas and the regulation of gas distributors; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Gas Industry Restructuring Act 1986. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette. 3 Interpretation (1) In this Act: Corporation means the Energy Corporation of New South Wales constituted under the Energy and Utilities Administration Act 1987. (2) In this Act: (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) Unless a contrary intention appears, expressions used in this Act have the same meanings respectively as they have in the Corporations Act 2001 of the Commonwealth. (4) For the purposes of this Act (including the application or use for interpretative purposes by or under this Act of a provision of the Corporations Act 2001 of the Commonwealth), The Australian Gas Light Company and all gas distributors that are subsidiaries of The Australian Gas Light Company are taken to be companies within the meaning of the Corporations Act 2001 of the Commonwealth. (5) 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, may be cited as the "Australian Gas Light Company Act 1837". (6) Notes included in this Act do not form part of this Act. 4 Application of this Act to AGL A reference in this Act to The Australian Gas Light Company includes on or after the conversion day referred to in the AGL Corporate Conversion Act 2002: (a) in relation to matters arising before that day—a reference to The Australian Gas Light Company referred to in the Australian Gas Light Company Act 1837, and (b) in relation to matters arising on or after that day—to the body corporate of that name constituted by the AGL Corporate Conversion Act 2002, and (c) in relation to matters arising on or after the registration day referred to in the AGL Corporate Conversion Act 2002—to registered AGL referred to in that Act. 5–7 (Repealed) Part 2 8–20 (Repealed) Part 3 Structure of the gas industry Division 1 21–30 (Repealed) Division 2 Future operation of the industry 31 Extension of powers of AGL and certain gas companies (1) The Australian Gas Light Company, Newcastle Gas Company Limited, City of Goulburn Gas and Coke Company (Limited) and Wollongong Gas Limited have the rights, powers and privileges of a natural person and such additional rights, powers and privileges as are conferred on a company by the Corporations Act 2001 of the Commonwealth. (2) Nothing in a company's relevant Act prohibits or restricts the exercise of a power by the company or limits the exercise of a power by the company to the pursuit of the objects of the company under the relevant Act. (3) Any act, matter or thing done or purporting to have been done by a company before the commencement of this section which would, if done after that commencement, have been validly done is validated. (4) Notwithstanding the provisions of a company's relevant Act, the company is authorised to do any act or thing necessary for or reasonably incidental to engaging in the reticulation of gas if authorised to do so under this Act. (5) In this section: relevant Act means: (a) in relation to The Australian Gas Light Company—the Australian Gas Light Company Act 1837, (b) in relation to Newcastle Gas Company Limited—the City of Newcastle Gas and Coke Company's Incorporation Act 1866, (c) in relation to the City of Goulburn Gas and Coke Company (Limited)—The City of Goulburn Gas and Coke Company's Incorporation Act, and (d) in relation to Wollongong Gas Limited—the Wollongong Gas-light Company (Limited) Act of 1883. 32–37 (Repealed) 38 Application of Corporations legislation to AGL and its subsidiaries (1) Subject to this Act, AGL and any relevant gas distributor are declared to be applied Corporations legislation matters for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to non-applicable Commonwealth provisions, subject to the following modifications: (a) a reference to a company includes a reference to AGL and a relevant gas distributor, (b) AGL is not required to use the word "Limited" in its name despite anything to the contrary in Part 2B.6 of the Corporations Act 2001 of the Commonwealth, (c) such other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations. Note— Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth. (2) Subsection (1) does not extend to any AGL matter. (3) Any AGL matter is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation. Note— Section 5F of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a matter to be an excluded matter for the purposes of that section in relation to all or part of the Corporations legislation of the Commonwealth, then the provisions that are the subject of the declaration will not apply in relation to that matter in the State concerned. (4) The regulations may declare any matter relating to AGL or a relevant gas distributor (including any matter dealt with by or under Part 4) to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to: (a) the whole of the Corporations legislation, or (b) a specified provision of the Corporations legislation, or (c) the Corporations legislation other than a specified provision, or (d) the Corporations legislation other than to a specified extent. (5) The regulations may provide for the Australian Securities and Investments Commission to exercise a function under any provision of the Corporations legislation that is the subject of the declaration under subsection (1), but only if: (a) the Australian Securities and Investments Commission is to exercise that function pursuant to an agreement of the kind referred to in section 11 (8) or (9A) (b) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, and (b) the Australian Securities and Investments Commission is authorised to exercise that function under section 11 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth. (6) Section 17 of the Corporations (Ancillary Provisions) Act 2001 has effect in relation to a regulation under subsection (5) as if subsection (1) had expressly made provision for the Australian Securities and Investments Commission to exercise the functions concerned. (7) In this section: AGL means The Australian Gas Light Company. AGL matter means a matter to the extent that it is dealt with by section 8, 10–13, 16, 17 or 19–42 of the Australian Gas Light Company Act 1837. matter includes act, omission, body, person or thing. non-applicable Commonwealth provisions means provisions of the Corporations legislation that do not apply to a matter as a law of the Commonwealth. relevant gas distributor means a gas distributor that is a wholly owned subsidiary of AGL. 39 Liability of shareholders of AGL, Newcastle Gas Co (1) This section applies: (a) to The Australian Gas Light Company and the Newcastle Gas Company Limited, and (b) notwithstanding the provisions of any memorandum or articles of association. (2) The liability of a member or past member of a company to which this section applies to contribute to the property of the company on a winding up of the company does not exceed the amount (if any) unpaid on the shares in respect of which the member is liable as a present or past member. Part 4 The Australian Gas Light Company—special provisions Editorial note— The provisions of Part 4 (other than section 56A) ceased to apply on the registration day (11.10.2002) in relation to matters arising on or after that day. See section 34 (1) of the AGL Corporate Conversion Act 2002. 40 Shareholding—interpretation (1) For the purposes of this Part, a person holds shares in The Australian Gas Light Company if the person would, for the purposes of the Companies (Acquisition of Shares) (New South Wales) Code, be regarded as being entitled to the shares. (2) The expressions shareholder and shareholding have a corresponding meaning. (2A) It is declared that the provisions of this Part that refer to, or apply to a matter, provisions of the Companies (New South Wales) Code or the Companies (Acquisition of Shares) (New South Wales) Code have effect (and are taken at all times on or after their commencement to have had effect) according to their tenor and despite any provision of the Corporations (New South Wales) Act 1990 or the applicable provisions (as defined in that Act) of the State. (2B) Expressions used in this Part have, unless the contrary intention appears, the same meanings respectively as they have in the Companies (New South Wales) Code. (2C) For the purposes of this Act (including the application or use for interpretative purposes by or under this Part of a provision of the Companies (New South Wales) Code or the Companies (Acquisition of Shares) (New South Wales) Code), the Australian Gas Light Company and all gas distributors that are subsidiaries of The Australian Gas Light Company are taken to be companies within the meanings of those Codes. (3) In this Part, The Australian Gas Light Company is referred to as the Company. (4) In this Part, a reference to a realised capital gain in relation to a share is a reference to any capital gain realised by the shareholder on the disposition of the share less any tax paid or payable by the shareholder in respect of that gain under a law of this State or the Commonwealth. 41 Maximum shareholding in AGL (1) A person may hold shares in the Company which represent up to, but shall not knowingly hold shares which represent more than, 5 per cent of its issued share capital. Penalty: 5,000 penalty units. (2) The Minister may approve in writing of a person holding a specified greater proportion of the issued share capital of the Company and a person who holds shares in accordance with the approval does not contravene this section. (3) This section applies to the exclusion of any provision of the AGL Corporate Conversion Act 2002 (or any law applied to the Company by that Act) concerning the maximum shareholding in the Company. (4) This section applies to a shareholding whether it commenced before, on or after the commencement of this section. 42 Approvals (1) The Minister shall not approve of a shareholding unless the Company consents. (2) With the consent of the Company, the Minister may: (a) give the approval subject to conditions, and (b) at any time vary, add to or revoke the conditions to which the approval is subject by notice in writing to the shareholder and the Company. (3) The approval may be revoked by the Minister at any time by notice in writing to the shareholder and the Company. 43 Notice of suspected contravention (1) Where the Company suspects that a person is contravening section 41, the Company shall immediately notify the Minister giving details of the suspected contravention. Penalty: 100 penalty units. (2) Before a transfer of shares in the Company is registered, a director or the secretary of the Company may require the transferee to make a statutory declaration under this section. (3) The declaration shall be to the effect that registration of the transfer will not result in a contravention of section 41 by the transferee or by a person who is or who would thereby become associated with the transferee (within the meaning of the Companies (New South Wales) Code). (4) If the transferee fails to comply with the requirement, the Company may refuse to register the transfer. 44 Directions concerning approved shareholdings (1) If the Minister grants an approval for a shareholding in the Company of greater than 5 per cent of its issued share capital, the Minister may by notice in writing to the shareholder and the Company give any one or more of the following directions: (a) a direction which prohibits, limits or otherwise restricts the exercise of any voting rights attached to the shares, (b) a direction vesting voting rights attached to some or all of the shares in any person, including the Minister, (c) a direction which provides that a specified person who is associated (within the meaning of the Companies (New South Wales) Code) with the shareholder in relation to the exercise of any voting rights attached to the shares is not qualified to be a director of the Company or of any of its gas distributor subsidiaries, (d) a direction which provides that not more than a specified number of persons who are so associated are qualified to be directors of the Company or of any of its gas distributor subsidiaries. (2) A direction concerning voting rights attached to shares may relate to any shares in the shareholding except shares representing 5 per cent of the issued share capital of the Company. (3) A direction: (a) may be given when the approval is given or subsequently, and (b) may be varied or revoked by the Minister at any time by notice in writing to the shareholder concerned and the Company. (4) A direction shall not be given, varied or revoked without the consent of the Company. (5) A direction has effect according to its tenor but only while the approval to which it relates is in force. 45 Powers of Minister to deal with contravention (1) Where the Minister is satisfied that a person holds shares in the Company in contravention of section 41, the Minister may by order in writing served on the person require the contravention to be remedied. (2) The order shall direct the person to remedy the contravention within a specified period, whether by disposing of shares or by other specified means. (2A) An order that directs a person to dispose of the shares may also direct that the person pay to the Corporation any realised capital gain on the shares. (2B) If a person is directed under subsection (2A) to pay to the Corporation any realised capital gain on shares, that amount becomes a debt due to the Corporation on the date on which the direction is given that is recoverable in a court of competent jurisdiction. (3) If the person fails to comply with the order, the Minister may: (a) by order in writing served on the Company, direct the Company not to make payment or to defer making payment of a dividend or other sum payable in respect of the shares, and (b) by order in writing served on any other person, direct the person, for the purpose of securing compliance with an order under this section, to do or refrain from doing a specified act. (4) An order affecting the dividend or other sums payable in respect of shares may relate to any shares in the shareholding except those which represent 5 per cent of the issued share capital of the Company. (5) A person shall comply with an order under this section. Penalty: 500 penalty units. 46 Powers of AGL (1) When the Company is aware that a shareholding is a contravention of section 41, voting rights attached to the shares are restricted by this section. (2) The voting rights attached to shares comprising the shareholding may be exercised only in respect of that part of the shareholding which represents not more than 5 per cent of the issued share capital of the Company. (3) On the application of the Company, the Supreme Court may make any order which the Minister is empowered to make under section 45. (4) The Company shall give the Minister at least 30 days' notice in writing before applying to the Supreme Court unless the Minister waives the requirement for notice in a particular case. (5) An order of the Supreme Court operates to the exclusion of any order of the Minister with which it would be inconsistent. 47 Payment of deferred dividend etc Payment of a dividend or other sum ordered by the Minister or the Supreme Court to be deferred shall be deferred only until the contravention to which the order relates is remedied or for such shorter period as may be specified in the order. 48 Forfeiture of shares required to be disposed of (1) Where a person fails to comply with an order of the Minister to remedy a contravention of the shareholding limitation, the Minister may by order in writing served on the Company direct that specified shares in the Company held by the person vest in the Corporation. (2) The order has effect accordingly and no stamp duty is payable on the order. (3) The order may vest only so many shares as may be necessary to remedy the contravention and in making the order the Minister shall give effect to any reasonable request of the shareholder as to which shares are to be vested in the Corporation. 49 Power of Corporation to deal with shares (1) Where shares vest in the Corporation, the Corporation shall sell the shares. (2) The sale shall be effected by public auction, public tender or private contract and in such manner, for such consideration and upon such terms and conditions as the Corporation and the Company agree. (3) The Corporation: (a) is entitled to retain 5 per cent of the proceeds of sale as commission, and (b) if there is a realised capital gain and it is greater than the amount of the commission, is entitled to retain the amount of that gain on the shares less the amount of the commission, and (c) must pay the rest of the proceeds together with any other sum due to the Corporation in respect of the shares to the person who was the registered holder of the shares immediately before they vested in the Corporation. (4) Out of the commission and realised capital gain (if any) retained, the Corporation is entitled to retain the reasonable costs and expenses incurred by it in and as incidental to the sale. (5) The rest of the commission and realised capital gain (if any) shall be paid into the Consolidated Fund. (6) Except for the purposes of this section, the Corporation shall not exercise any rights attached to shares while they are vested in the Corporation. 50 Information concerning shareholding (1) If the Minister believes on reasonable grounds that a person (including a person outside the State) has information concerning the level of and any beneficial interest in a shareholding in the Company, the Minister may require the person to furnish that information to the Minister. (2) The requirement shall be made in writing and served on the person and shall specify the manner in which and the time within which the information is to be furnished. (3) If the person is a corporation, the Minister may also make the requirement of a person who is or has been an officer or employee of, or an agent, banker, Australian legal practitioner, auditor or other person acting in any capacity for or on behalf of, the corporation. (4) Unless the person satisfies the court that it is not within the person's power to comply with it, a person who fails to comply with the requirement is guilty of an offence and liable to a penalty not exceeding 500 penalty units. (5) The Minister is entitled to rely on the failure of a person to comply with a requirement to furnish information concerning a shareholding as evidence, in the absence of evidence to the contrary, that the shareholding is a contravention of section 41. (6) The Minister shall supply details to the Company of any information obtained by the Minister under this section. 50A Minister may require Company to furnish certain shareholding information (1) The Minister may at any time require the Company to furnish the Minister with such information contained in its Share Register or concerning shareholdings in it as may be required by the Minister. (2) The requirement must: (a) be in writing, and (b) be served on the Company, and (c) specify the manner in which and the time within which the information is to be furnished. (3) The Company must comply with any requirement under this section. Maximum penalty (subsection (3)): 500 penalty units. (4) It is a defence to a prosecution for an offence under subsection (3) if the Company satisfies the court that it was not within the Company's power to comply with the requirement. 51–55 (Repealed) 56 Minister may obtain expert advice concerning prohibited shareholdings (1) The Minister may obtain advice from any person or body that the Minister considers has relevant expertise to assist the Minister in exercising a function under this Part. (2) The Minister may take any such advice into account in exercising a function under this Part. 56A Statements from Company concerning monitoring of Share Register (1) In this section: post-enactment period means the period commencing on the date of assent to the AGL Corporate Conversion Act 2002 and ending on the registration day within the meaning of that Act (inclusive). pre-enactment period means the period commencing on 2 April 2001 and ending on the day immediately before the date of assent to the AGL Corporate Conversion Act 2002 (inclusive). (2) The Company must, within 7 days after the end of the pre-enactment period: (a) examine the Share Register of the Company for the pre-enactment period, and (b) provide the Minister with a written statement that: (i) states whether, following that examination, the Company suspects that any person may have contravened section 41 during the pre-enactment period, and (ii) gives details of any such suspected contravention (including details of any suspected contravention previously notified to the Minister under section 43 (1)). Maximum penalty: 100 penalty units. (3) The Company must, within 7 days after the end of the post-enactment period: (a) examine the Share Register of the Company for the post-enactment period, and (b) provide the Minister with a written statement that: (i) states whether, following that examination, the Company suspects that any person may have contravened section 41 during the post-enactment period, and (ii) gives details of any such suspected contravention (including details of any suspected contravention previously notified to the Minister under section 43 (1)). Maximum penalty: 100 penalty units. 56B Application of Corporations legislation to this Part (1) Any relevant matter is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation to which Part 1.1A of that Act applies. (2) In this section: matter includes act, omission, body, person or thing. relevant matter means any matter that is prohibited, required, authorised or permitted by or under this Part. 56C Amendments made by AGL Corporate Conversion Act 2002 apply to matters occurring on or after 2 April 2001 (1) The amendments made to this Part by Schedule 1 to the AGL Corporate Conversion Act 2002 extend to matters occurring on or after 2 April 2001 as if those amendments had been in force at the relevant time. (2) In this section: matter includes act, omission, body, person or thing. Part 5 57–69 (Repealed) 70 Gas Customers Reserve Account (1) A gas distributor which is a subsidiary of The Australian Gas Light Company is to establish and maintain in its accounts a separate account to be called the Gas Customers Reserve Account. (2) There is to be credited to the Gas Customers Reserve Account of a gas distributor: (a) the amount standing to the credit of the Tariff Stabilisation Account of the distributor immediately before the substitution of this section by the Gas (Amendment) Act 1990, and (b) (Repealed) (c) any other amount required by this Act to be credited to the Gas Customers Reserve Account. Part 5A Transfer of rights and liabilities under customer supply contracts 71 Definitions In this Part: asset means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities choses in action and documents. gas has the same meaning as in the Gas Supply Act 1996. gas supply arrangement means a contract, agreement or other arrangement for the supply of gas. liability means any liability, debt or obligation (whether present or future and whether vested or contingent). right means any right, power, privilege or immunity (whether present or future and whether vested or contingent). section 72 order means an order in force under section 72. transferee company means AGL Retail Energy Limited (ACN 074 839 464), AGL Retail Energy (Contract Sales) Limited (ACN 076 092 067) or AGL Wholesale Energy Limited (ACN 074 821 720). transferor company means AGL Gas Networks Limited (ACN 003 004 322). 72 (Repealed) 73 Vesting of gas supply arrangements in transferee (1) When any gas supply arrangement, gas or other asset, right or liability is transferred by a section 72 order, the following provisions have effect: (a) any such gas or other asset vests in the transferee company by virtue of this section and without the need for any conveyance, transfer, assignment or assurance, (b) any such right or liability, and any right or liability of the transferor company under or in connection with: (i) any such gas supply arrangement, or (ii) any such gas, or (iii) any such other asset, becomes, by virtue of this section, the right or liability of the transferee company, (c) all proceedings relating to: (i) any such gas supply arrangement, or (ii) any such gas, or (iii) any such other asset, right or liability, that were commenced before the transfer by or against the transferor company or a predecessor of the transferor company and pending immediately before the transfer are taken to be proceedings pending by or against the transferee company, (d) any act, matter or thing that was done or omitted to be done in relation to: (i) any such gas supply arrangement, or (ii) any such gas, or (iii) any such other asset, right or liability, before the transfer by, to or in respect of the transferor company is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee company. (2) The operation of this section is not to be regarded: (a) as a breach of contract or confidence or otherwise as a civil wrong, or (b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of: (i) any gas supply arrangement, or (ii) any gas, or (iii) any other asset, right or liability, or (c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of: (i) any gas supply arrangement, or (ii) any gas, or (iii) any other asset, right or liability. (3) The operation of this section is not to be regarded as an event of default under any contract or other instrument. (4) A transfer is subject to the terms and conditions of the section 72 order by which it is effected. (5) No compensation is payable to any person or body in connection with a transfer effected by a section 72 order except to the extent (if any) to which the order so provides. 74 Date of vesting A section 72 order takes effect on the date specified in the order. 75 Stamp duty Stamp duty is not chargeable for or in respect of: (a) a transfer effected by a section 72 order, or (b) anything certified by the Minister as having been done in consequence of such a transfer. 76 Confirmation of vesting (1) The Minister may, by notice in writing, confirm a transfer of: (a) a particular gas supply arrangement or a particular class of gas supply arrangement, or (b) particular gas or a particular class of gas, or (c) a particular asset, right or liability or a particular class of asset, right or liability, by operation of this Part. (2) Such a notice is conclusive evidence of that transfer. 77–83 (Repealed) Parts 6–8 84–131 (Repealed) Part 9 Miscellaneous 132 Secrecy A person shall not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made: (a) with the consent of the person from whom the information was obtained, (b) in connection with the administration or execution of this Act, (c) for the purposes of any legal proceedings arising out of this Act or of any report of those proceedings, (d) with the written consent of the Minister given after consultation with the person from whom the information was obtained, (e) when the information is otherwise publicly available, or (f) with other lawful excuse. Penalty: 200 penalty units. 133, 134 (Repealed) 135 Service of documents A document may be served on a person for the purposes of this Act: (a) in the case of a natural person—by delivering the document personally to the person or by serving it by post, or (b) in the case of a company or a registered body (including The Australian Gas Light Company) under the Corporations Act 2001 of the Commonwealth—in the manner provided by section 109X or 601CX of that Act respectively. . 136, 137 (Repe