New South Wales: Electricity Generator Assets (Authorised Transactions) Act 2012 (NSW)

Electricity Generator Assets (Authorised Transactions) Act 2012 No 35 An Act to authorise and provide for the transfer of the electricity generator assets of the State. Part 1 Preliminary 1 Name of Act This Act is the Electricity Generator Assets (Authorised Transactions) Act 2012. 2 Commencement (1) This Act commences on the date of assent, except as provided by subsection (2). (2) Schedule 5 (Ownership restrictions in floated transaction companies) commences on a day to be appointed by proclamation. 3 Interpretation—key definitions In this Act— authorised transaction means a transfer of electricity generator assets authorised by Part 2. electricity generator means a statutory State owned corporation constituted by the Energy Services Corporations Act 1995 as an electricity generator under that Act. electricity generator assets means assets, rights and liabilities of an electricity generator. Note— Schedule 1 contains other interpretative provisions. Part 2 Authorised transfers of electricity generator assets 4 Transfer of electricity generator assets to private sector This Act authorises the transfer of electricity generator assets to the private sector. 5 Transfer of electricity generator assets between public sector agencies This Act authorises the transfer of electricity generator assets between public sector agencies. 6 Proceeds of transaction (1) The proceeds of the transfer of electricity generator assets pursuant to an authorised transaction (the transaction proceeds) belong to and are payable directly to the State. (2) The transaction proceeds paid to the State are to be paid into the Restart NSW Fund (the Fund) established under the Restart NSW Fund Act 2011. (3) The following deductions are authorised to be made from the transaction proceeds— (a) deduction of such amounts as the Treasurer approves to repay debt and satisfy other liabilities of a public sector agency in respect of electricity generator assets transferred for the purposes of an authorised transaction, (b) deduction of such amounts as the Treasurer approves to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement, (c) deduction of such amounts as the Treasurer approves to satisfy any liability of a public sector agency arising under or in connection with a transaction arrangement, (d) deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of an authorised transaction. (4) The transaction proceeds do not include any amount certified by the Treasurer to have been paid to a public sector agency as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement. (5) The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Fund or may be made by payment from the Fund. (6) The requirements of this section do not affect the validity of a transaction arrangement. Part 3 Facilitating authorised transactions 7 Treasurer's functions for the purposes of an authorised transaction The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction. The functions conferred on the Treasurer by any other provision of this Act do not limit the Treasurer's functions under this section. 8 Transaction SOCs (1) A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of an authorised transaction. (2) The Governor may by order published in the Gazette— (a) create a corporation under a corporate name specified in the order, and (b) specify the functions of the corporation, and (c) direct that the corporation is established as a statutory State owned corporation and as a transaction SOC. (3) On the day on which the order takes effect— (a) a corporation is constituted with the corporate name and functions specified in the order, and (b) the State Owned Corporations Act 1989 is amended by inserting in Schedule 5 the corporate name specified in the order (to establish the corporation as a statutory State owned corporation under that Act), and (c) the State owned corporation thereby established is a transaction SOC for the purposes of this Act. (4) The portfolio Minister of a SOC established under this section is the Minister administering section 13 (Creation of additional energy services corporations) of the Energy Services Corporations Act 1995. (5) Schedule 2 has effect with respect to a transaction SOC. The provisions of that Schedule are in addition to and (except to the extent to which that Schedule otherwise provides) do not derogate from the provisions of the State Owned Corporations Act 1989. 9 Transaction companies (1) The Treasurer may for the purposes of an authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways— (a) the formation or acquisition by or on behalf of the State or a SOC of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or a SOC (or both), (b) the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company, (c) the conversion of an electricity generator or transaction SOC into a company limited by shares as provided by Schedule 3. (2) A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company. (3) Except by express agreement with the Treasurer— (a) a transaction company is not and does not represent the State, and (b) the debts, liabilities and obligations of a transaction company are not guaranteed by the State. (4) The Treasurer may act for or on behalf of the State, a SOC or a transaction company that is a public sector agency in connection with the rights, privileges and benefits, and the duties, liabilities and obligations of the State, a SOC or transaction company as the holder of shares or other securities in a transaction company. (5) Shares and other securities in a transaction company that is a public sector agency may be issued, sold or transferred in accordance with the directions of the Treasurer. The Treasurer may on behalf of the State, a SOC or a transaction company that is a public sector agency enter into and carry out transaction arrangements for the issue, sale or transfer of shares and other securities in a transaction company. (6) An electricity generator that becomes a transaction company remains an electricity generator for the purposes of this Act (despite ceasing to be a statutory State owned corporation constituted by the Energy Services Corporations Act 1995). 10 Functions of electricity generators and transaction entities (1) Each electricity generator and transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction. (2) The functions conferred by this section are in addition to any other functions that an electricity generator or transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section. (3) The Treasurer may act for or on behalf of an electricity generator or transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency. 11 Direction and control of electricity generators and transaction entities (1) Each electricity generator and transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency. (2) The Treasurer may give directions for the purposes of an authorised transaction to an electricity generator or transaction entity, and to the directors and other officers of an electricity generator or transaction entity. Any such directions must be complied with by the electricity generator, the transaction entity or the directors or other officers concerned. (3) Directions to a transaction entity (or its directors and other officers) can only be given and are only required to be complied with while the transaction entity is a public sector agency. (4) The power to give directions under this section extends to directions with respect to the way in which an electricity generator or transaction entity is to conduct its business and other affairs. (5) Action taken by an electricity generator or transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation. (6) Anything done or omitted to be done by a director or other officer of an electricity generator or transaction entity in complying with a direction given by the Treasurer under this Act does not subject the director or officer personally to any action, liability, claim or demand. (7) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally. 12 Establishment of Electricity Assets Ministerial Holding Corporation (1) There is constituted by this Act a corporation with the corporate name of the Electricity Assets Ministerial Holding Corporation. (2) The affairs of the Corporation are to be managed by the Treasurer who may authorise another Minister to exercise functions in relation to particular assets, rights and liabilities. (3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Treasurer or a Minister authorised by the Treasurer, or with the authority of the Treasurer or any such Minister, is taken to have been done by the Corporation. (4) The Corporation has the functions conferred or imposed on it by or under this or any other Act. (5) The functions of the Corporation are— (a) to hold, on behalf of the Crown, electricity generator assets acquired by it or transferred to it by or under this or any other Act, and (b) to carry on any activities or business that relate to any electricity generator assets held by it, including demanding, collecting and receiving charges, levies, rates and fees, and (c) such other functions for the purposes of an authorised transaction as may be prescribed by the regulations. Part 4 Arrangements for transfer of assets, staff and functions 13 Vesting orders The Treasurer may make vesting orders under Schedule 4 for the purposes of an authorised transaction. 14 Staff transfers (1) The Treasurer may, for the purposes of an authorised transaction, by order in writing, transfer the employment of an employee of an electricity generator (a transferred employee) to the employment of another public sector agency. (2) A transferred employee is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the employee had the employee remained an employee of the electricity generator concerned. (3) On the transfer by order under this section of an employee's employment from one employer (the current employer) to another employer (the new employer) the following provisions have effect— (a) the employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which he or she was a contributor, member or employee (as an employee of the current employer) immediately before the transfer of employment and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law, (b) the new employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the employee continues as a contributor, member or employee pursuant to an entitlement under this section, (c) the continuity of the employee's contract of employment is taken not to have been broken by the transfer of employment, and service of the employee with the current employer (including service deemed to be service with the current employer) that is continuous service up to the time of transfer is taken for all purposes to be service with the new employer, (d) the employee retains any rights to sick leave, annual leave or long service leave accrued or accruing immediately before the transfer (except accrued leave for which the employee has, on ceasing to be an employee of the current employer, been paid the monetary value in pursuance of any other entitlement of the employee). (4) The Treasurer may negotiate and enter into agreements or industrial instruments concerning workplace relations for or on behalf of a public sector agency in connection with the operation of this section. 15 Payments to employees leaving public sector employment (1) The Treasurer or another public sector agency may enter into agreements or other arrangements with respect to the making of transfer payments to employees of an electricity generator in connection with the transfer of employment of those employees to employment in the private sector as a result of a transaction arrangement. (2) A transfer payment is not to exceed an amount equivalent to 30 weeks of pay at the rate of an employee's base salary (that is, salary less any allowances). (3) Without affecting any entitlement to a transfer payment under this section, an employee of an electricity generator is not entitled to receive any payment or other benefit (including in the nature of severance pay or redundancy compensation) merely because the employee ceased to be an employee of a public sector agency as a result of a transaction arrangement. 16 Employment guarantee for employees transferred to private sector and maintenance of apprenticeships (1) If the employment of an eligible employee of an electricity generator is transferred to employment in the private sector as a result of a transaction arrangement, the employment of the employee cannot be terminated by the private sector employer during the employee's employment guarantee period, except— (a) for serious misconduct, or (b) pursuant to the proper application of reasonable disciplinary procedures, or (c) by agreement with the employee. (2) An employee's employment guarantee period is— (a) for eligible employees who are permanent employees—the period of 2 years (the standard period) after the transfer date, or (b) for eligible employees who are temporary employees—the remainder of the employee's current term of employment (as specified in the arrangements under which the employee was engaged as a temporary employee) immediately before the transfer date, or the period of 2 years (the standard period) after the transfer date, whichever period ends first. (3) The object of this subsection is to provide an additional job maintenance guarantee because the transfer of electricity generator assets under this Act is by way of sale. The standard period of 2 years is extended by an additional period of 2 years for eligible employees. (4) The Treasurer is to take all reasonable steps to ensure that, under the transaction arrangements with all private sector employers, a total of at least 150 apprenticeships is maintained in the electricity generation businesses of those employers in NSW during any employment guarantee period under this section. (5) In this section— casual employee means an employee whose employment is in a category of employment that is described in or classified under a relevant award as casual employment or who is otherwise engaged as a casual employee. contract employee means an employee whose terms and conditions of employment are provided by an individual contract and not by a relevant award. eligible employee means a permanent employee or temporary employee and does not include a contract employee or casual employee. permanent employee means an employee whose employment is of indefinite duration and who is not a casual employee, temporary employee or contract employee. private sector employer means the employer in the private sector to whose employment the employment of an eligible employee is transferred as a result of a transaction arrangement. relevant award means any award, agreement or other industrial instrument (under a law of the State or the Commonwealth) that provides for the terms and conditions of employment of employees. temporary employee means an employee (other than a casual employee or contract employee) whose employment is in a category of employment that is described in or classified under a relevant award as temporary employment or whose employment is, under the terms of his or her employment, for a limited period. transfer date means the date on which an eligible employee is transferred to employment in the private sector as a result of a transaction arrangement. 17 Effect of transfer of electricity generator assets between public sector agencies (1) When the business of an electricity generator is transferred to another public sector agency for the purposes of an authorised transaction— (a) the public sector agency becomes the new operator of the business and that business is to be conducted as the electricity business of the new operator, and (b) the new operator is deemed to be an electricity generator for the purposes of this Act in respect of the business that comprises its electricity business as conducted by the new operator from time to time, but only while the new operator is a public sector agency and not in respect of any other business of the new operator, and (c) the new operator has and may exercise all such functions as may be necessary or convenient for the purpose of the carrying on of its electricity business, and (d) the new operator has the benefit of any relevant operating licence for the purpose of the carrying on of its electricity business, and (e) a public sector agency responsible for the issue of any such relevant operating licence must, at the request of the new operator, re-issue the licence in the name of the new operator and subject to terms, conditions and endorsements that are the same (or to substantially the same effect) as those to which it was subject before its re-issue. (2) If the business comprising the electricity business of the new operator is transferred to another public sector agency, this section also operates in respect of that transfer (and any further transfer for the purposes of an authorised transaction). (3) This section applies to the transfer of part of, or an interest in, a business in the same way as it applies to a transfer of the whole business. (4) In this section— relevant operating licence, in relation to a transferred business of an electricity generator, means any licence, permit, entitlement, accreditation or other authority that was held by the electricity generator before the transfer and that is necessary or convenient for the carrying on of any aspect of the electricity business of the new operator. 18 Grant of relevant authorisations (1) The Treasurer may give directions to a public sector agency for or with respect to the grant of any relevant authorisation to a person who becomes or who it is proposed will become the new operator of any electricity generator assets pursuant to an authorised transaction, including directions for or with respect to any of the following— (a) requiring the grant of any such relevant authorisation without the necessity for the making or determination of any application, (b) the displacement or modification of any provision of a relevant law in its application to the grant of any such relevant authorisation, (c) the conditions or endorsements subject to which any such relevant authorisation is to be granted or that are to be attached to any such relevant authorisation. (2) A direction may only be given under this section for the grant of a relevant authorisation that— (a) operates to transfer or replace an existing relevant authorisation that is currently in force, and (b) is subject to terms, conditions or endorsements that are the same (or to substantially the same effect) as those to which that existing relevant authorisation is subject. (3) The Treasurer must consult with a public sector agency before giving a direction to the public sector agency under this section. (4) A public sector agency exercising functions under a relevant law must comply with a direction of the Treasurer under this section. (5) Anything done by an electricity generator in compliance with a condition or endorsement of a relevant authorisation in relation to electricity generator assets of which a person is the new operator is taken to have been done by the new operator for the purposes of any corresponding condition or endorsement of a relevant authorisation granted to the new operator pursuant to a direction under this section. (6) A relevant authorisation granted to an electricity generator or to the new operator of electricity generator assets may not be suspended or cancelled on the ground of the conversion of the electricity generator or new operator to a company or on the ground of any change that has occurred in the officers or shareholders of the company as a result of that conversion or pursuant to a transaction arrangement. (7) In this section— grant includes issue and transfer. new operator of electricity generator assets means— (a) a public sector agency to which any electricity generator assets are transferred for the purposes of an authorised transaction, or (b) a person (or the nominee of a person) in whom electricity generator assets are vested, or to whom electricity generator assets are transferred, pursuant to an authorised transaction. relevant authorisation means a licence, permit, consent, entitlement, accreditation or other authorisation under a relevant law. relevant law means any of the following Acts and any regulations or instruments under those Acts— Electricity Supply Act 1995 Energy Services Corporations Act 1995 Gas Supply Act 1996 Protection of the Environment Operations Act 1997 Water Act 1912 Water Management Act 2000 19 Acquisition of land by Electricity Assets Ministerial Holding Corporation (1) The Electricity Assets Ministerial Holding Corporation may, for the purposes of an authorised transaction, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 that the Corporation determines to be— (a) land on which electricity generator assets of an electricity generator were situated on the date of assent to this Act and continue to be situated, or (b) land that on the date of assent to this Act was used or occupied by an electricity generator for or in connection with the exercise of any function of the electricity generator and that continues to be so used or occupied. (2) In the case of land used (but not occupied) by an electricity generator for or in connection with the exercise of any function of the electricity generator, such as land used for the purposes of access, the power conferred by this section to acquire the land is limited to a power to acquire an interest in the land sufficient to allow that use of the land to continue. (3) A public sector agency is not entitled to compensation under the Land Acquisition (Just Terms Compensation) Act 1991 as the owner of land acquired pursuant to this section. (4) Land acquired by the Corporation pursuant to this section is deemed to be an asset of an electricity generator for the purposes of this Act and the Corporation is deemed to be an electricity generator for the purposes of this Act while it holds the land. Note— Land acquired pursuant to this section is an electricity generator asset for the purposes of an authorised transaction (whether or not it was an electricity generator asset before it was acquired). Part 5 Operation of other laws 20 State taxes (1) In this section— relevant matter means any of the following— (a) the transfer of electricity generator assets for the purposes of an authorised transaction, (b) a vesting of assets, rights or liabilities by operation of Schedule 4 (Vesting of assets, rights and liabilities) and anything certified by the Treasurer as having been done in consequence of such a vesting (for example, the transfer or registration of an interest in land), (c) the issue, disposal or purchase of shares or other securities in a company for the purposes of an authorised transaction, (d) any matter connected with the corporate conversion of an electricity generator or transaction SOC for the purposes of an authorised transaction, (e) such other matters for the purposes of an authorised transaction as may be prescribed by the regulations. State tax means application or registration fees, duty under the Duties Act 1997 or any other tax, duty, fee or charge imposed by any Act or law of the State. (2) State tax is not payable by a public sector agency in relation to a relevant matter. (3) State tax is not payable by a person or body (other than a public sector agency) in relation to a relevant matter to such extent (if any) as the Treasurer may direct by order in writing, either generally or in a particular case. (4) An order may be made by the Treasurer under this section before or after the liability to pay the State tax concerned accrues. (5) The Treasurer must give a copy of an order under this section to the Chief Commissioner of State Revenue. 21 Management of electricity trading risks—competition exemption (1) 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 agreement (including any electricity derivative agreement) entered into by an electricity generator or transaction entity in connection with the management of electricity trading risks and certified by the Treasurer for the purposes of this section to be an agreement entered into with the approval of or at the direction of the Treasurer, (b) the conduct of the parties in negotiating and entering into any such agreement, (c) the conduct of the parties (and of the successors, substitutes or assigns of the parties) in performing any such agreement. (2) Anything authorised to be done by this section is authorised only to the extent (if any) that it would otherwise contravene Part IV of the Competition and Consumer Act 2010 of the Commonwealth or the Competition Code of New South Wales. 22 General relationship of Act with other State legislation (1) None of the following provisions operate to prevent, restrict or otherwise limit the carrying out of a transaction arrangement or the exercise of a function for the purposes of an authorised transaction— (a) any provision of the State Owned Corporations Act 1989, (b) any provision of the constitution of a statutory SOC or a subsidiary of a statutory SOC, (c) section 11 (Prohibition on privatisation of energy services corporations) of the Energy Services Corporations Act 1995. (2) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of any other State legislation that is prescribed by the regulations as an inconsistent provision for the purposes of this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency. (3) The requirements of any other Act (whether enacted before or after this Act) for the approval by resolution of either or both Houses of Parliament (or by Act) of any act that constitutes the transfer of electricity generator assets for the purposes of an authorised transaction is satisfied by the enactment of this Act. 23 Release of information by Auditor-General Section 38 (Secrecy) of the Government Sector Audit Act 1983 does not apply to or in respect of a report or communication that the Treasurer authorises the Auditor-General to make to a person for the purposes of an authorised transaction. 24 Contracts for sale of land Section 52A (Contracts for sale of land) of the Conveyancing Act 1919 does not apply to a contract for the sale of land that is entered into for the purposes of an authorised transaction. 25 Protection of contractual and other obligations (1) This section applies to the following— (a) the operation of this Act (including any order under this Act and anything done or omitted to be done under or for the purposes of this Act), (b) the transfer of electricity generator assets for the purposes of an authorised transaction, (c) the entering into or performance of obligations under a transaction arrangement by a public sector agency, (d) a disclosure of information by, on behalf of or with the consent of a public sector agency for the purposes of an authorised transaction. (2) None of the matters or things to which this section applies are to be regarded as— (a) a breach of contract or confidence or otherwise as a civil wrong, or (b) a breach of any instrument (including, without limitation, any provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities) or as requiring any act to be done under an instrument, or (c) giving rise to any right or remedy by a party to a contract or other instrument, or as causing or permitting the termination of, or exercise of rights under, any contract or other instrument, or (d) an event of default under any contract or other instrument, or (e) giving rise to a breach of or an offence against a provision of an Act that prohibits or restricts the disclosure of information, or (f) releasing a surety or other obligee wholly or in part from an obligation. (3) Subsection (2) does not affect the rights and obligations of the parties to a transaction arrangement in respect of the performance of obligations under the transaction arrangement. (4) In this section— instrument means an instrument (other than 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. 26 Compensation not payable (1) Compensation is not payable by or on behalf of the State— (a) because of the enactment or operation of this Act, or for any consequence of that enactment or operation, or (b) because of any statement or conduct relating to the enactment of this Act. (2) This section does not extend to compensation payable under a transaction arrangement to a party to the transaction arrangement in connection with the performance of obligations under the transaction arrangement. (3) In this section— compensation includes damages or any other form of monetary compensation. conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise. operation of this Act includes the operation of any notice or order under this Act and any agreement entered into under or for the purposes of this Act. statement includes a representation of any kind— (a) whether made verbally or in writing, and (b) whether negligent, false, misleading or otherwise. the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes a public sector agency and an officer, employee or agent of the Crown or a public sector agency. Part 6 Miscellaneous 27 Delegation The Treasurer may delegate to the Secretary of the Treasury, or to any other Public Service employee prescribed by the regulations, any function of the Treasurer under this Act except this power of delegation. 28 Act to bind State and other jurisdictions (1) This Act binds the State and, in so far as the legislative power of the Parliament of New South Wales permits, the other States, the Territories and the Commonwealth. (2) Without limiting subsection (1), this Act has effect despite any privilege or immunity of the Crown in any of its capacities. (3) This Act does not make any State or Territory, the Commonwealth, or the Crown in any of its capacities, liable to be prosecuted for an offence. (4) A reference in this section to a State, Territory or the Commonwealth includes a reference to the Government of the State, Territory or Commonwealth. 29 Extraterritorial operation of Act (1) It is the intention of the Parliament of New South Wales that the operation of this Act should, as far as possible, include operation in relation to the following— (a) things situated in or outside the territorial limits of the State, (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of the State, (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another State, a Territory, the Commonwealth or a foreign country. (2) Without limiting subsection (1), it is the intention of the Parliament of New South Wales that the provisions of this Act have an operation in relation to the things, acts, transactions and matters referred to in that subsection even if the rules of private international law (whether at general law or as provided by legislation) would require the application of a law other than this Act instead of the provisions of this Act. 30 Construction of Act and instruments so as not to exceed legislative power (1) Unless a contrary intention appears, if a provision of this Act or an instrument made under this Act— (a) would, apart from this section, have an invalid application, but (b) also has at least one valid application, it is the intention of the Parliament of New South Wales that the provision is not to have the invalid application, but is to have every valid application. (2) Despite subsection (1), the provision is not to have a particular valid application if— (a) apart from this section, it is clear, taking into account the provision's context and the purposes or objects underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the legislative power of the Parliament of New South Wales, or (b) the provision's operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application, or a particular invalid application, of the provision had been within the legislative power of the Parliament of New South Wales. (3) Subsection (2) does not limit the cases in which a contrary intention may be taken to appear for the purposes of subsection (1). (4) This section is in addition to, and not in derogation of, section 31 of the Interpretation Act 1987. (5) In this section— application means an application in relation to— (a) one or more particular persons, things, matters, places, circumstances or cases, or (b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases. invalid application, in relation to a provision, means an application because of which the provision exceeds the legislative power of the Parliament of New South Wales. valid application, in relation to a provision, means an application which, if it were the provision's only application, would be within the legislative power of the Parliament of New South Wales. 31 Certificate evidence A certificate purporting to be signed by the Treasurer or an officer prescribed by the regulations certifying that an order specified or referred to in the certificate is an order made by the Treasurer under a specified provision of this Act is admissible in evidence in any legal proceedings and is evidence of the matters certified. 32 Service or giving of documents (1) A document that is authorised or required by this Act or the regulations to be served on or given to any person may be served or given— (a) in the case of a natural person— (i) by delivering it to the person personally, or (ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or (iii) by sending it by facsimile transmission to the facsimile number of the person, or (b) in the case of a body corporate— (i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or (ii) by sending it by facsimile transmission to the facsimile number of the body corporate. (2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner. 33 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. Schedule 1 Interpretative provisions (Section 3) 1 Definitions In this Act— 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. authorised transaction—see section 3. business of a body means all of the assets, rights and liabilities of the body. corporate conversion, in relation to an electricity generator or transaction SOC, means the registration of the corporation as a company under the Corporations Act. Corporations Act means the Corporations Act 2001 of the Commonwealth. Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act applies. Electricity Assets Ministerial Holding Corporation or the Corporation means the Electricity Assets Ministerial Holding Corporation constituted by this Act. electricity generator—see section 3. electricity generator assets—see section 3. function includes a power, authority or duty, and exercise a function includes perform a duty. general law means the common law and equity (as modified from time to time by legislation). initial public offer means the offer to the public of securities quoted or to be quoted on a stock exchange that is a prescribed financial market under the Corporations Act. legislation includes— (a) any statute of a legislature (whether enacted or made in Australia or elsewhere), and (b) any proclamation, regulation, rule, by-law, order or any other kind of subordinate legislation (however described) made under the authority of a statute (whether enacted or made in Australia or elsewhere). liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable). modification includes addition, exception, omission or substitution. private sector means any person other than a public sector agency. Note— A person who is a public sector agency of another jurisdiction is a private sector person for the purposes of this Act. public sector agency means any of the following— (a) the State (including the Crown in right of the State), (b) a Minister, (c) the Ministerial Holding Corporation constituted by the State Owned Corporations Act 1989, (d) the Electricity Assets Ministerial Holding Corporation, (e) a SOC, (f) a public authority of the State, (g) any other person acting on behalf of the State (or the Crown in right of the State), (h) a transaction company, but only while all the shares in the transaction company are held by or on behalf of the State or a SOC or the transaction company is the subsidiary of another transaction company all the shares in which are held by or on behalf of the State or a SOC. rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable). SOC means a State owned corporation within the meaning of the State Owned Corporations Act 1989. State legislation means any legislation of the State. the State means the State of New South Wales. transaction arrangement means a transaction, agreement or other arrangement entered into by or on behalf of a public sector agency for the purposes of an authorised transaction. transaction company means a company established as a transaction company pursuant to this Act. transaction entity means a transaction SOC or a transaction company. transaction SOC means a SOC established as a transaction SOC pursuant to this Act. 2 Functions for the purposes of an authorised transaction For the purposes of this Act, any act, matter or thing is done or has effect for the purposes of an authorised transaction if it is done or has effect for the purpose of effecting or facilitating an authorised transaction or is done or has effect for any purpose that is ancillary or incidental to or consequential on an authorised transaction. 3 Transfer of electricity generator assets—interpretation (1) When this Act authorises the transfer of electricity generator assets it is authorising any transaction, arrangement or other action that results in electricity generator assets becoming vested in the transferee. (2) The following are examples of the ways in which electricity generator assets can be transferred— (a) direct sale to the transferee, (b) sale to the transferee of a transaction entity, (c) any other transaction whereby the transferee becomes an owner of an interest in electricity generator assets. (3) The transfer of electricity generator assets does not require a transfer of electricity generator assets by or from an electricity generator and could, for example, be effected by the corporate conversion of an electricity generator (to establish a transaction company) and the transfer of shares in the transaction company to the transferee (including by means of an initial public offer of shares in the company). (4) In this clause— entity includes a transaction company. sale of an entity includes a sale of securities in the entity. transaction entity means— (a) an entity that holds electricity generator assets or into which an electricity generator is converted, or (b) an entity that is the holding company of an entity referred to in paragraph (a), or (c) an entity that has control (within the meaning of the Corporations Act) of an entity referred to in paragraph (a), or (d) any other entity the sale of which results in electricity generator assets being vested in the transferee. 4 Words and expressions defined in Corporations Act Words and expressions used in this Act that are defined in section 9 of the Corporations Act have the same meanings as in that section, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires. 5 When events 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. 6 Notes Notes included in this Act do not form part of this Act. Schedule 2 Provisions concerning transaction SOCs (Section 8) 1 Board of directors (1) Each transaction SOC is to have a board of directors. (2) The board is to consist of— (a) the chief executive officer, and (b) at least 3 and not more than 5 other directors appointed by the voting shareholders. (3) Of the directors appointed under subclause (2) (b), one is (in and by the director's instrument of appointment as director or in and by another instrument executed by the voting shareholders) to be appointed as Chairperson of the Board. (4) The board is accountable to the voting shareholders in the manner set out in Part 4 of the State Owned Corporations Act 1989 and in the constitution of the transaction SOC. (5) The voting shareholders may remove a director, or the chairperson, from office at any time for any or no reason and without notice and, in that event, the office of the director or chairperson is taken to have become vacant for the purposes of Schedule 8 to the State Owned Corporations Act 1989. (6) Except as provided by this clause, Schedule 8 to the State Owned Corporations Act 1989 has effect with respect to the constitution and procedure of the board. (7) The provisions of section 20J of the State Owned Corporations Act 1989, and of clauses 2 (1) and (2), 4 and 7 (1) (d) and (2) of Schedule 8 to that Act, do not apply to a transaction SOC or to the chairperson. (8) The provisions of clause 6 of Schedule 8 to the State Owned Corporations Act 1989 do not apply to the chief executive officer, and the chief executive officer is not entitled to remuneration under that clause, in his or her capacity as a director. 2 Chief executive officer (1) The chief executive officer of a transaction SOC is to be appointed by the board after consultation with the voting shareholders. (2) The board may remove a person from office as chief executive officer, at any time, for any or no reason and without notice, but only after consultation with the voting shareholders. (3) The chief executive officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine. (4) The board may, after consultation with the voting shareholders, fix the conditions of employment of the chief executive officer in so far as they are not fixed by or under any other Act or law. (5) The Government Sector Employment Act 2013 (Part 6 included) does not apply to the chief executive officer. (6) Subject to subclause (7), Schedule 9 to the State Owned Corporations Act 1989 has effect with respect to the chief executive officer. (7) The provisions of section 20K of the State Owned Corporations Act 1989, and of clauses 2, 3 and 6 of Schedule 9 to that Act, do not apply to the chief executive officer. 3 Acting chief executive officer (1) The board may, from time to time, appoint a person to act in the office of chief executive officer during the illness or absence of the chief executive officer. (2) The board may remove a person from office as acting chief executive officer, at any time, for any or no reason and without notice. (3) A person, while acting in the office of chief executive officer— (a) has all the functions of the chief executive officer and is taken to be the chief executive officer, and (b) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine. (4) For the purposes of this clause, a vacancy in the office of chief executive officer is regarded as an absence from office. (5) Clause 5 of Schedule 9 to the State Owned Corporations Act 1989 does not apply to an acting chief executive officer of a transaction SOC. 4 Dividends (1) The voting shareholders of a transaction SOC, in consultation with the board, are to determine the corporation's share dividends scheme. (2) The dividends to be paid by a transaction SOC are to be declared by the board in accordance with the share dividends scheme so determined. (3) The provisions of section 20S (1) of the State Owned Corporations Act 1989 do not apply to a transaction SOC. 5 Supply of information to portfolio Minister The provisions of section 29 (2) of the State Owned Corporations Act 1989 do not apply to a transaction SOC. Schedule 3 Corporate conversion of electricity generators and transaction SOCs (Section 9) 1 Direction for corporate conversion of electricity generators and transaction SOCs (1) The Treasurer may direct by order in writing (a corporate conversion direction) that an electricity generator or transaction SOC be converted into a company limited by shares of a specified type. (2) An electricity generator cannot be the subject of a corporate conversion direction unless it is an electricity generator on the date of assent to this Act or is a transaction SOC. 2 Application for conversion to company (1) An electricity generator to which a corporate conversion direction has been given is authorised to apply to be registered under Part 5B.1 of the Corporations Act as a company limited by shares of the type specified in the direction. (2) That application can only be made if the Treasurer has issued a certificate to the corporation that certifies that the Treasurer is satisfied that the provisions of this Act have been complied with concerning the transfer of its incorporation to the Corporations Act. (3) A certificate issued by the Treasurer for the purposes of this clause— (a) cannot be challenged, reviewed or called into question in proceedings before any court or tribunal, and (b) 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 the corporation to the Corporations Act. 3 Effect of conversion (1) The following provisions are taken to have had effect immediately before an electricity generator to which a corporate conversion direction has been given is registered as a company under the Corporations Act— (a) the corporation ceases to be a statutory State owned corporation for the purposes of the State Owned Corporations Act 1989 or any other State legislation, (b) the corporation ceases to be an energy services corporation under the Energy Services Corporations Act 1995 unless the regulations provide otherwise, (c) the voting shareholders (within the meaning of the State Owned Corporations Act 1989) of the corporation cease to be members of the corporation, (d) the board of directors of the corporation is dissolved and each member (including any acting member) of the board ceases to hold office as such, (e) any person who holds a statutory office of the corporation ceases to hold that office, (f) any person who ceases to be a member of the corporation or to hold an office because of the operation of this subclause is not entitled to any compensation for the loss of that membership or office. (2) Nothing in this clause prevents any person from becoming an officer of the company into which the corporation is being converted in accordance with its constitution and the provisions of the Corporations Act. (3) An electricity generator to which a corporate conversion direction has been given becomes a transaction company for the purposes of this Act only when it is registered as a company under the Corporations Act. Schedule 4 Vesting of assets, rights and liabilities (Section 13) 1 Definitions In this Schedule— transferee means the person or body in whom any assets, rights or liabilities are vested by a vesting order. transferor means the person or body from whom any assets, rights or liabilities are divested by a vesting order. vesting order means a vesting order under this Schedule. 2 Making of vesting order The Treasurer may, by order (a vesting order), vest assets, rights and liabilities of a public sector agency that is an electricity generator or transaction entity in a person specified in the order as the transferee. 3 Vesting of assets, rights and liabilities in transferee (1) When any assets, rights or liabilities are vested by a vesting order, the following provisions have effect (subject to the vesting order)— (a) the assets vest in the transferee by virtue of this clause and without the need for any conveyance, transfer, assignment or assurance, (b) the rights and liabilities become, by virtue of this clause, the rights and liabilities of the transferee, (c) all proceedings relating to the assets, rights or liabilities pending by or against the transferor are taken to be proceedings pending by or against the transferee, (d) the transferee has all the entitlements and obligations of the transferor in relation to the assets, rights and liabilities that the transferor would have had but for the order, whether or not those entitlements and obligations were actual or potential at the time the order took effect, (e) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities by, to or in respect of the transferor is (to the extent that the act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee, (f) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to those assets or liabilities but subject to the regulations), to be read as, or as including, a reference to the transferee. (2) No attornment to the transferee by a lessee from the transferor is required. 4 Terms and conditions of vesting A vesting order may be made on such terms and conditions as are specified in the order. 5 Consideration for vesting A vesting order may specify the consideration for which a vesting to which it applies is made and the value or values at which assets, rights or liabilities are vested. 6 Date of vesting A vesting order takes effect on the date it is made or on such other date as may be specified in the order. 7 Vesting of interests in land (1) A vesting order may vest an interest in respect of land vested in the transferor without vesting the whole of the interests of the transferor in that land. (2) If the interest vested is not a separate interest, the order operates to create the interest vested in such terms as are specified in the order. (3) This clause does not limit any other provision of this Schedule. 8 Confirmation of vesting (1) The Treasurer may by order in writing confirm a vesting of particular assets, rights or liabilities by operation of this Schedule. (2) Such an order is evidence of that vesting. 9 Determinations by Treasurer For the purposes of the making of a vesting order, the Treasurer may determine whether or not particular assets, rights or liabilities comprise assets, rights or liabilities of an electricity generator or transaction entity at a particular time, and such a determination is conclusive as to the matters determined. 10 Certification to registration authorities (1) In this clause— registration authority means a person or body that has functions under any law in connection with the keeping of a register in respect of assets, rights or liabilities. (2) A public sector agency that is the transferee or transferor under a vesting order may lodge with a registration authority a certificate certifying as to such information as may reasonably be required by the registration authority to enable the registration authority to exercise any function of the authority arising in connection with the vesting of any asset, right or liability pursuant to the vesting order. (3) Such a certificate is to be accepted and acted upon by the registration authority and, despite any other law, the registration authority is not entitled to require that the information concerned be provided to it in any particular form or in any particular manner. (4) No fee or charge is payable by the transferee to a registration authority for or in respect of the exercise of any function by the registration authority in connection with the vesting of an asset, right or liability by a vesting order. 11 Evidence of orders and certificates A document purporting to be a vesting order or an order or certificate made or given under a provision of this Schedule is, unless the contrary is established, taken to be such an order or certificate and to have been properly made or given. 12 Public sector accounting policies The Treasurer may give directions to public sector agencies for or with respect to accounting policies to be applied by public sector agencies in connection with the transfer between public sector agencies of assets, rights and liabilities of an electricity generator or transaction entity for the purposes of an authorised transaction (in place of public sector accounting policies that would otherwise be applicable in respect of any such transfer). Schedule 5 Ownership restrictions in floated transaction companies Part 1 Ownership restrictions Note— Some of the terms and expressions used in this Part are defined in Part 5 (Interpretative provisions) of this Schedule. 1 Maximum ownership level (1) If electricity generator assets are transferred pursuant to an authorised transaction by means of an initial public offer of shares in a transaction company, this Schedule applies to impose ownership restrictions in relation to the company. (2) The maximum ownership level for the purposes of this Schedule is set at the percentage prescribed by the regulations. (3) This Schedule ceases to apply in relation to a transaction company at the end of the period of 2 years (or such longer period may be prescribed by the regulations as the period for which this Schedule is to apply to the company) beginning on the day on which the company is first listed on a stock exchange that is a prescribed financial market under the Corporations Act. (4) A regulation may not be made under this clause in respect of a company after the commencement of the period during which an offer of shares in the company (for the purposes of the initial public offer concerned) can be accepted. 2 Meaning of "prohibited ownership situation" For the purposes of this Schedule, a prohibited ownership situation exists in relation to a floated transaction company and in relation to a particular person if the person holds a particular type of stake in the company of more than the maximum ownership level set by clause 1. Note— A person's stake includes the interests of the person's associates—see Part 5 of this Schedule. 3 Acquisition of shares that result in prohibited ownership situation A person, or 2 or more persons under an arrangement, who acquire shares in a floated transaction company are each guilty of an offence if— (a) the acquisition has any of the following results— (i) a prohibited ownership situation comes into existence in relation to the company and in relation to a person, (ii) if a prohibited ownership situation already exists in relation to the company and in relation to a person—there is an increase in any type of stake held by the person in the company, and (b) the person or persons under the arrangement knew, or were reckless as to whether, the acquisition would have that result. Maximum penalty—400 penalty units. 4 Floated transaction company to take reasonable steps to prevent contraventions of ownership restrictions (1) A floated transaction company must take all reasonable steps to ensure that a prohibited ownership situation does not exist in relation to the company. (2) A floated transaction company is guilty of an offence if it engages in conduct that contravenes a requirement of subclause (1). Maximum penalty—500 penalty units. Note— If a floated transaction company contravenes this subclause, clause 22 operates to make each person who is a director of the company or who is concerned in the management of the company liable for the offence if the person knowingly authorised or permitted the contravention. (3) An offence under subclause (2) is a strict liability offence. 5 Contravention of Part does not affect validity of acts An act is not invalidated only because it constitutes an offence under this Part. Part 2 Location of Member Registers of floated transaction companies 6 Member Register to be within the State A floated transaction company must not, without the written approval of the Treasurer— (a) change the location where any Member Register of the company is kept to a location that is outside of the territorial limits of the State, or (b) keep any Member Register of the company at a location that is outside of the territorial limits of the State. Maximum penalty—500 penalty units. Note— If a floated transaction company contravenes this clause, clause 22 operates to make each person who is a director of the company or who is concerned in the management of the company liable for the offence if the person knowingly authorised or permitted the contravention. Part 3 Records and information 7 Record-keeping and information giving (1) The regulations may make provision for or with respect to requiring a person— (a) to keep and retain records, where the records are relevant to an ownership matter, and (b) to give information to the Treasurer or a floated transaction company that is relevant to— (i) an ownership matter, or (ii) ascertaining whether Part 1 of this Schedule has been or is being complied with. (2) The regulations may provide that information given in accordance with a requirement of regulations made for the purposes of subclause (1) (b) must be verified by statutory declaration. (3) A person is not excused from giving information in accordance with a requirement of regulations made for the purposes of subclause (1) (b) on the grou