New South Wales: State Owned Corporations Act 1989 (NSW)

State Owned Corporations Act 1989 No 134 An Act to provide for the establishment and operation of Government enterprises as State owned corporations. Part 1 Preliminary 1 Name of Act This Act may be cited as the State Owned Corporations Act 1989. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— assets 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. board means the board of directors of a State owned corporation or of any of its subsidiaries. company State owned corporation or company SOC means a company for the time being specified in Schedule 1. constitution for a SOC or subsidiary means— (a) in relation to a company SOC—the constitution of that company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) in relation to a statutory SOC—the constitution of the SOC referred to in section 20Q, or (c) in relation to a subsidiary that is a company within the meaning of the Corporations Act 2001 of the Commonwealth—the constitution of the company within the meaning of that Act, or (d) in relation to a subsidiary that is not a company—the subsidiary's charter or memorandum and articles of association. eligible Ministers means— (a) in relation to a company SOC or proposed company SOC or any of its subsidiaries—the Treasurer and 4 or more other Ministers for the time being nominated by the Premier as being eligible to hold shares in the SOC, or (b) in relation to a statutory SOC or proposed statutory SOC or any of its subsidiaries—the Treasurer and another Minister for the time being nominated by the Premier as a voting shareholder of the SOC. foundation charter of a statutory SOC means the Act by which the name of the SOC is inserted in Schedule 5, or some other Act specified by an Act as its foundation charter, and includes any replacement Act. government entity means— (a) a State department, administrative office, instrumentality, agency, authority or entity, that is not a corporation, or (b) a division, branch or other part of such a department, office, instrumentality, agency, authority or entity. liabilities means liabilities, debts and obligations (whether present or future and whether vested or contingent). portfolio Minister—see section 20I. rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent). State owned corporation or SOC means a company for the time being specified in Schedule 1 or a corporation for the time being specified in Schedule 5. statutory State owned corporation or statutory SOC means a corporation for the time being specified in Schedule 5. subsidiary means a body corporate that is a subsidiary of a State owned corporation as determined in accordance with the Corporations Act 2001 of the Commonwealth, and (in relation to a statutory SOC) includes a body corporate that would be such a subsidiary if the statutory SOC were a company SOC. the State includes the Crown in right of New South Wales and the Government of New South Wales. voting shareholders means— (a) in relation to a company SOC or any of its subsidiaries—the Treasurer and one of the other eligible Ministers who is for the time being nominated by the Premier as a voting shareholder of the SOC, in their capacities as shareholders in the SOC, or (b) in relation to a statutory SOC or any of its subsidiaries—the shareholders of the SOC as referred to in section 20H, in their capacities as shareholders in the SOC. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (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) Notes included in this Act do not form part of this Act. 3A Classes of State owned corporations There are two classes of State owned corporations, as follows— (a) company State owned corporations (or company SOCs), (b) statutory State owned corporations (or statutory SOCs). Part 2 Company SOCs Division 1 Establishment of company SOCs 4 Establishment of company SOCs A company limited by shares becomes a company SOC by the insertion of its name in Schedule 1 by an Act of Parliament. 5 Change or removal of name of company (1) The regulations under this Act may amend Schedule 1 to reflect a change of name of a company. (2) The name of a company may not be removed from Schedule 1 except by an Act of Parliament. 6 Authorisation to participate in formation of companies Any eligible Minister may, for the purposes of this Act, participate in the formation of, or acquire shares in, a company limited by shares, in anticipation of the establishment of a company SOC. 7 Transfer of assets and liabilities etc (1) Assets, rights and liabilities of the State or an authority of the State and forming part of or relating to an undertaking carried on by or under the authority of a Minister or a Public Service agency, or under the executive authority of the State, may be transferred to a company SOC or any of its subsidiaries, in exchange for the issue of shares or on any other basis. (2) The regulations under this Act may make provision for or with respect to the transfer of any such assets, rights and liabilities to a company SOC or any of its subsidiaries. (3) The regulations under this Act may provide that references in any Act, or in any regulation or other statutory rule under any Act, or in any other instrument, or in any contract or agreement, to— (a) the State or an authority of the State, in connection with any such assets, rights or liabilities or in connection with any such undertaking, or (b) (without limiting the above) a Minister, a Public Service agency or a person employed in a Public Service agency, are to be read as references to a company SOC or any of its subsidiaries or to a director, officer or employee of any such SOC or subsidiary. (4) This section does not apply to assets, rights and liabilities of a statutory corporation unless— (a) the assets, rights and liabilities can be transferred to the State owned corporation apart from this section, or (b) an Act of Parliament provides that this section applies to the assets, rights and liabilities of the statutory corporation. 7A Ministerial direction For the purposes of or incidental to the transfer from an authority to a company SOC, a subsidiary of a company SOC or any other person of any assets, rights or liabilities under this Act or under the Act by which the name of the company SOC is inserted in Schedule 1, the authority is, in the exercise of its functions, subject to the control and direction of the Minister. 7B Inter-relationship with Corporations legislation (1) The regulations may declare any matter relating to a company SOC that is dealt with by this Act or the regulations 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. 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. (2) In this section— matter includes act, omission, body, person or thing. Division 2 Provisions relating to company SOCs 8 Principal objectives of company SOCs (1) The principal objectives of every company SOC are— (a) to be a successful business and, to this end— (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the SOC, and (b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991, and (d) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates. (2) Each of the principal objectives of a company SOC is of equal importance. 9 Status of company SOCs A company SOC or any of its subsidiaries— (a) is not and does not represent the State except by express agreement with the voting shareholders of the SOC, and (b) is not exempt from any rate, tax, duty or other impost imposed by or under any law of the State merely because it is a company SOC, and (c) cannot render the State liable for any debts, liabilities or obligations of the SOC or any of its subsidiaries, unless this or any other Act otherwise expressly provides. 10 Directors (1) The directors of a company SOC are to be persons who, in the opinion of those appointing them, will assist the SOC to achieve its principal objectives. (2) The board is accountable to the voting shareholders in the manner set out in Part 4 and in the constitution of the SOC. 10A Authority for Minister to act for and on behalf of a voting shareholder (1) A voting shareholder of a company SOC may authorise any Minister to act for and on behalf of the voting shareholder in his or her capacity as a voting shareholder while he or she is unavailable (by reason of his or her absence or disability or for any other reason). (2) If a Minister is authorised under this section to act for and on behalf of a voting shareholder, any function of a voting shareholder may, while the authority remains in force, be exercised from time to time by the Minister instead of by that voting shareholder. However, the Minister authorised under this section may not exercise the function of authorising another Minister under this section. (3) Any act, matter or thing done or omitted to be done by a Minister while acting for or on behalf of a voting shareholder pursuant to an authority under this section is to be as valid and have the same consequences as if the act, matter or thing had been done or omitted to be done by that voting shareholder. (4) A Minister who purports to act for or on behalf of a voting shareholder is presumed, until the contrary is proved, to be authorised under this section. (5) An authority under this section may be revoked by the voting shareholder who granted it, or by the Premier. (6) An authority under this section operates until— (a) the end of the term specified in the authority, or (b) the authority is revoked, or (c) the voting shareholder who granted the authority ceases to be a voting shareholder, or (d) by virtue of this or any other Act, the Minister authorised under the authority becomes a person who cannot be a voting shareholder of the company SOC, whichever occurs first. (7) In the constitution of the company SOC of which the Minister is a voting shareholder, and in any Act or instrument, a reference to a voting shareholder under this Act includes a reference to any Minister who is acting for or on behalf of a voting shareholder pursuant to an authority under this section. (8) A Minister may be authorised under this section by reference to his or her name or by reference to the title of the office that he or she holds as Minister. (9) An authority under this section must be in writing, signed by the voting shareholder who granted it. (10) The revocation of an authority under this section must be in writing, signed by the voting shareholder who granted the authority or by the Premier. (11) Notice of an authority under this section, or of the revocation of such an authority, may be published in the Gazette at any time, and, where such a notice is so published, judicial notice is to be taken of the notice and of the authority or revocation, as the case may be. (12) Every authority under this section must be recorded by the Minister administering this Act. (13) The following Ministers may not be authorised under this section— (a) the Treasurer, or (b) a Minister who is also a voting shareholder of the same company SOC, or (c) a Minister who, by virtue of this or any other Act, cannot be a voting shareholder of the company SOC. (14) Any act, matter or thing done or omitted to be done by a Minister while acting for or on behalf of a voting shareholder pursuant to an authority under this section 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. This subsection ensures that neither the Corporations Act 2001 nor Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth will apply in relation to the matters specified. Section 5F of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a matter to be an excluded matter in relation to that Act or Part, then the provisions of that Act or Part will not apply in relation to that matter in the State concerned. (15) This section does not affect the operation of section 36 or 37 of the Constitution Act 1902. (16) In this section, a reference to a function of a voting shareholder includes a reference to any function of a voting shareholder whether conferred or imposed— (a) by the constitution of the company SOC, or (b) by the terms, express or implied, of this or any other Act or of any instrument under this or any other Act, or (c) by or under any other law, and to any other function that is incidental to any such function. 11 Non-commercial activities (1) If a Minister wishes a company SOC to perform activities, or to cease to perform activities, or not to perform activities, in circumstances where the board considers that it is not in the commercial interests of the SOC to do so, that Minister with the approval of the Treasurer may, by written notice to the board, direct the SOC to do so in accordance with any requirements set out or referred to in the notice. (2) The SOC is required to comply with any such direction. (3) The SOC is entitled to be reimbursed, from money advanced by the Treasurer or appropriated by Parliament for the purpose, amounts equal to— (a) the net cost of performing any such activities, including the cost of capital, and (b) the net cost of complying with a direction to cease to perform or not to perform any such activities. (4) The amounts and times of payment of those amounts are as agreed between the Treasurer and the SOC or (failing agreement) as determined by a suitably qualified person or persons nominated by the Premier. (5) The SOC may be reimbursed, from money advanced by the Treasurer or appropriated by Parliament for the purpose, amounts not exceeding the estimated net amount of revenue forgone through ceasing to perform or not performing any such activities, as determined by the Treasurer having regard to such factors as the Treasurer considers relevant in the circumstances. 12 Constitutions of company SOCs (1) The Ministers who are the voting shareholders of a company SOC are responsible for ensuring that the constitution of the SOC at all times contain provisions to the effect of those required by Schedule 2. (2) The constitution may contain other provisions, so long as they are not inconsistent with the provisions referred to in subsection (1) or any other provisions of this Act. (3) This section does not apply to the extent provided in resolutions of both Houses of Parliament. 13 Constitutions of subsidiaries (1) The Ministers who are the voting shareholders of a company SOC are responsible for ensuring that the constitution of every subsidiary of the SOC at all times contain provisions to the effect of those required by Schedule 3. (2) The constitution may contain other provisions, so long as they are not inconsistent with the provisions referred to in subsection (1) or any other provisions of this Act. (3) This section does not apply to the extent provided in resolutions of both Houses of Parliament. 14 Dividends (1) The board of a company SOC and the voting shareholders may agree that payments required to be made by the SOC or any of its subsidiaries in respect of dividends will be applied in the purchase of shares by shareholders in the SOC. (2) If any such payments are applied in the purchase of shares, the payments may be appropriated for that purpose without being paid into the Consolidated Fund. (3) Otherwise, dividends declared for a company SOC or any of its subsidiaries and payable to eligible Ministers are to be paid to the Treasurer on behalf of the State for payment into the Consolidated Fund. 15 Tax-equivalents (1) A company SOC must from time to time pay to the Treasurer for payment into the Consolidated Fund such amounts as the Tax Assessor determines to be equivalent to the amounts that would be payable by the SOC if it were liable to pay taxes under the law of the Commonwealth. (2) The SOC is not required to make payments under this section to the extent that it is or becomes liable to pay any such taxes. (3) Payments are to be made under this section on such terms as the Tax Assessor determines to be equivalent to the terms on which the amounts would be payable (including terms as to instalments and times of payment) if the SOC were liable to pay corresponding taxes under the law of the Commonwealth. (4) The SOC and the Treasurer may enter into agreements regarding the amounts to be paid under this section or the terms on which they are to be paid, and any such agreements have effect despite anything in subsections (1) and (3). (5) The determinations of the Tax Assessor under this section are to be made in such a way as to give effect to any such agreements. (6) Any such determination of the Tax Assessor is final, and the Treasurer and the SOC are required to make all the necessary payments and refunds to give effect to the determination. (6A) If a refund is required, the Treasurer, or an authorised person, may direct payment out of the Consolidated Fund of the amount required to be refunded. The Consolidated Fund is appropriated to the necessary extent to enable payment of such refunds. (7) The Premier may nominate any person or persons to be the Tax Assessor for any one or more company SOCs, and may revoke any such nomination. (8) This section applies to the subsidiaries of a company SOC in the same way as it applies to the SOC, and (where relevant) applies to the SOC and its subsidiaries as a group. (9) Amounts required to be paid under this section are called tax-equivalents. (10) In this section— authorised person means the Chief Commissioner of State Revenue, or an officer of Treasury authorised by the Chief Commissioner of State Revenue to exercise the functions of an authorised person under this section. Tax Assessor, in relation to a company SOC, means the person nominated for the time being under subsection (7) as the Tax Assessor for the SOC. 16 Government guarantee (1) The obligations of a company SOC or any of its subsidiaries are not guaranteed by the State of New South Wales, except to the extent that the board of the SOC and voting shareholders agree in writing. (2) Any liability arising from an agreed guarantee is to be met out of the Consolidated Fund, which is appropriated accordingly. (3) The voting shareholders may, after the consultation with the board of the SOC, fix charges to be paid by the SOC or any of its subsidiaries to the Treasurer in respect of an agreed guarantee, either generally or in so far as it relates to specified matters. (4) Payments by the SOC or any of its subsidiaries to the Treasurer in respect of any such charges are required to be made at such times, and in such instalments, as the Treasurer determines. 17 State taxation (1) In this section— exempt matter means— (a) the formation of, or the acquisition of shares in, a company in anticipation of the establishment of a company SOC, or (b) the registration of such a company, or (c) the issue or transfer of shares of a company SOC or any of its subsidiaries to eligible Ministers, or (d) the transfer of assets, rights or liabilities to a company SOC or any of its subsidiaries from the State, any authority of the State or any subsidiary of an authority of the State, or (e) giving effect to any of the above. tax includes stamp duty and any other tax, duty, fee, levy or charge, but does not include tax-equivalents. (2) Tax under a law of the State is not payable in relation to— (a) an exempt matter, or (b) anything done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, an exempt matter. (3) The Treasurer or a person authorised by the Treasurer may, by written instrument, certify that— (a) a specified matter or thing is an exempt matter, or (b) a specified thing was done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a specified exempt matter. (4) For all purposes and in all proceedings, a certificate under this section is conclusive evidence of the matters certified, except so far as the contrary is established. 18 Subsidiaries (1) A company SOC or any of its subsidiaries may not form, participate in the formation of or acquire subsidiaries without the prior written approval of the voting shareholders. (2) A company SOC or any of its subsidiaries may not acquire or dispose of shares of a company, or participate in any other transaction, resulting in the company becoming or ceasing to be a subsidiary, without the prior written approval of the voting shareholders. (3) In seeking the approval of the voting shareholders, the SOC or subsidiary is required to provide the voting shareholders with such information as they require, including such kinds of information (if any) as are prescribed by the regulations under this Act. 19 Acquisition and disposal of assets etc (1) A company SOC or any of its subsidiaries may not acquire or dispose of fixed assets or investments, including shares in a company, without the prior written approval of the voting shareholders— (a) where the total assets and investments being acquired or disposed of (together with any other such acquisitions or dispositions during the last 12 months) represent an amount in excess of the prescribed percentage of the written down value of the SOC's consolidated fixed assets and investments as disclosed in its last audited financial report, or (b) where it could reasonably be expected that the inclusion or exclusion, respectively, of the total current year's profit or loss of such acquisition or disposition (together with any other such acquisitions or dispositions during that year) would result in an increase in or diminution of the SOC's consolidated pre-tax operating profit or loss for the year of acquisition or disposal in excess of the prescribed percentage compared with that consolidated pre-tax operating profit or loss disclosed in its last audited financial report. (2) In the case of an acquisition to which this section applies, the amount is the cost price of the asset or investment. (3) In the case of a disposition to which this section applies, the amount is the book value or the consideration on disposal, whichever is the greater. (4) A company SOC or any of its subsidiaries may not acquire or dispose of any assets or liabilities, in contravention of any requirements of the regulations under this Act. (5) In seeking the approval of the voting shareholders under this section, the SOC or subsidiary is required to provide the voting shareholders with such information as they require, including such kinds of information (if any) as are prescribed by the regulations under this Act. (6) The prescribed percentage is 10 per cent or such other percentage as is prescribed by the regulations under this Act. (7) All or any specified requirements of subsections (1), (2) and (3) do not apply in such circumstances as are specified in a written notice given to a company SOC or a subsidiary of a company SOC by the Treasurer. (8) The Treasurer may not give such a notice unless satisfied that the requirements are incapable of application to the SOC or subsidiary in the circumstances or would apply to it in a clearly inappropriate manner. (9) The voting shareholders may, by written notice, direct a company SOC or its subsidiaries not to dispose of any specified asset. 20 Sale or disposal of main undertaking (1) None of the main undertakings of a company SOC, and none of the main undertakings of any of its subsidiaries, may be sold or disposed of except with the prior written approval of the voting shareholders. (2) The main undertakings are as specified in the most recent statement of corporate intent of the SOC. Part 3 Statutory SOCs Division 1 Establishment of statutory SOCs 20A Establishment of statutory SOCs (1) A corporation becomes a statutory SOC by the insertion of its name in Schedule 5 by an Act of Parliament. (2) A company cannot become a statutory SOC. 20B Change or removal of name of statutory SOC (1) The regulations under this Act may amend Schedule 5 to reflect a change of name of a statutory SOC contained in that Schedule. (1A) On the day on which a regulation under section 12 of the Energy Services Corporations Act 1995 takes effect, this Act is amended by omitting from Schedule 5 the name of the energy services corporation whose name is being varied and by inserting instead the corporation's name as varied. (1B) On the day on which a regulation under clause 2 of Schedule 5 to the Ports Assets (Authorised Transactions) Act 2012 takes effect, this Act is amended by omitting from Schedule 5 the name of the Port Corporation whose name is being changed and by inserting instead the corporation's name as changed. (2) The name of a statutory SOC may not be removed from Schedule 5 except by an Act of Parliament. 20C Transfer of assets, rights and liabilities (1) Assets, rights and liabilities of the State or an authority of the State and forming part of or relating to an undertaking carried on by or under the authority of a Minister or a government entity, or under the executive authority of the State, may be transferred to a statutory SOC or any of its subsidiaries, in exchange for the issue of shares or on any other basis. (2) The regulations under this Act may make provision for or with respect to the transfer of any such assets, rights and liabilities to a statutory SOC or any of its subsidiaries. (3) The regulations under this Act may provide that references in any Act, or in any regulation or other statutory rule under any Act, or in any other instrument, or in any contract or agreement, to— (a) the State or an authority of the State, in connection with any such assets, rights or liabilities or in connection with any such undertaking, or (b) (without limiting the above) a Minister or a government entity or an officer or employee of a government entity, are to be read as references to a statutory SOC or any of its subsidiaries or to a director, officer or employee of any such SOC or subsidiary. (4) This section does not apply to assets, rights and liabilities of a statutory corporation unless— (a) the assets, rights and liabilities can be transferred to the statutory SOC apart from this section, or (b) an Act of Parliament provides that this section applies to the assets, rights and liabilities of the statutory corporation. 20D Ministerial direction For the purposes of or incidental to the transfer from an authority to a statutory SOC, a subsidiary of a statutory SOC or any other person of any assets, rights or liabilities under this Act or under the Act by which the name of the statutory SOC is inserted in Schedule 5, the authority is, in the exercise of its functions, subject to the control and direction of the Minister. Division 2 Provisions relating to statutory SOCs 20E Principal objectives of statutory SOCs (1) The principal objectives of every statutory SOC are— (a) to be a successful business and, to this end— (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the SOC, and (b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991, and (d) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates. (2) Each of the principal objectives of a statutory SOC is of equal importance. 20F Status of statutory SOCs A statutory SOC or any of its subsidiaries— (a) is not and does not represent the State except by express agreement with the voting shareholders of the SOC, and (b) is not exempt from any rate, tax, duty or other impost imposed by or under any law of the State merely because it is a SOC, and (c) cannot render the State liable for any debts, liabilities or obligations of the SOC or any of its subsidiaries, unless this or any other Act otherwise expressly provides. 20G Application of Commonwealth Corporations Act 2001 (1) A statutory SOC 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 other than— (a) section 1101I (Gaming and wagering laws do not affect validity of contracts relating to financial products) of that Act to the extent that it applies to any contract that is a financial product entered into by an energy services corporation within the meaning of the Energy Services Corporations Act 1995, or (b) to the extent specified by the regulations for the purposes of this subsection. 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. (2) The regulations may declare a statutory SOC to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to— (a) the whole of the Corporations legislation, or (b) an Act, regulations or other instrument forming part of the Corporations legislation, or (c) a provision or provisions of the Corporations legislation or of an Act, regulations or other instrument forming part of the Corporations legislation. 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. (3) A provision of the Corporations legislation that is the subject of any such declaration in the regulations has effect subject to the following modifications— (a) the provision applies as if a SOC were a public company and a company limited by shares, (b) the provision applies as if shares in the SOC held by voting shareholders were shares held in the SOC as a public company and a company limited by shares, (c) such other modifications as may be prescribed by the regulations. (4) Without limiting subsections (2) and (3) (c), any such regulations may— (a) specify modifications to the definitions and other interpretative provisions of the Corporations legislation relevant to any provision of the Commonwealth legislation that is the subject of the declaration, and (b) provide for ASIC to exercise a function under any provision of the Corporations legislation that is the subject of the declaration, but only if— (i) ASIC 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 (ii) ASIC is authorised to exercise that function under section 11 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, and (c) specify that a reference to ASIC in any provision of the Corporations legislation that is the subject of the declaration is to be read as a reference to another person, and (d) identify the provisions of the Corporations legislation to which the declaration relates by reference to that legislation as in force at a particular time, and (e) specify a court of this State (other than the Supreme Court) to exercise any function conferred on a court or the Court by any provision of the Corporations legislation to which the declaration relates. (5) Subsection (2) does not apply to any provision of the Corporations legislation that applies to a statutory SOC as a law of the Commonwealth. (6) Words and expressions used in this section and also in Part 3 of the Corporations (Ancillary Provisions) Act 2001 have the same meanings as they have in that Part. 20H Share capital, shares and shareholders (1) A statutory SOC is to have a share capital and shares as provided in its constitution. (2) A statutory SOC must have two shareholders, and no more at any time. (3) Each shareholder must at all times have an equal number of shares in the statutory SOC. (4) Each shareholder must at all times be entitled to rights equal to those to which the other shareholder is entitled. (5) The shareholders are to be the Treasurer and another Minister for the time being nominated by the Premier as a voting shareholder of the SOC. The Premier can be nominated as a voting shareholder. (6) If the person holding office as Treasurer ceases to hold that office— (a) each share in each statutory SOC held by the person is taken to be transferred to the person next appointed to that office, and (b) each statutory SOC is required to register the transfer. (7) A single instrument of transfer may transfer the shares in any one or more statutory SOCs held by the voting shareholder other than the Treasurer— (a) if another Minister is for the time being nominated as that voting shareholder in respect of any one or more of the statutory SOCs concerned, or if different Ministers are so nominated in respect of different statutory SOCs—to that other Minister or those other Ministers, or (b) to the person next appointed to the office of the Minister for the time being nominated as that voting shareholder in respect of the statutory SOC or SOCs concerned. Note. The Premier is empowered to execute a transfer of any issued shares in a statutory SOC—see section 20Q and clause 3 (5) of Schedule 6. 20HA Authority for Minister to act for and on behalf of a voting shareholder (1) A voting shareholder of a statutory SOC may authorise any Minister to act for and on behalf of the voting shareholder in his or her capacity as a voting shareholder while he or she is unavailable (by reason of his or her absence or disability or for any other reason). (2) If a Minister is authorised under this section to act for and on behalf of a voting shareholder, any function of a voting shareholder may, while the authority remains in force, be exercised from time to time by the Minister instead of by that voting shareholder. However, the Minister authorised under this section may not exercise the function of authorising another Minister under this section. (3) Any act, matter or thing done or omitted to be done by a Minister while acting for or on behalf of a voting shareholder pursuant to an authority under this section is to be as valid and have the same consequences as if the act, matter or thing had been done or omitted to be done by that voting shareholder. (4) A Minister who purports to act for or on behalf of a voting shareholder is presumed, until the contrary is proved, to be authorised under this section. (5) An authority under this section may be revoked by the voting shareholder who granted it, or by the Premier. (6) An authority under this section operates until— (a) the end of the term specified in the authority, or (b) the authority is revoked, or (c) the voting shareholder who granted the authority ceases to be a voting shareholder, or (d) by virtue of this or any other Act, the Minister authorised under the authority becomes a person who cannot be a voting shareholder of the statutory SOC, whichever occurs first. (7) In the constitution of the statutory SOC of which the Minister is a voting shareholder, and in any Act or instrument, a reference to a voting shareholder under this Act includes a reference to any Minister who is acting for or on behalf of a voting shareholder. (8) A Minister may be authorised under this section by reference to his or her name or by reference to the title of the office that he or she holds as Minister pursuant to an authority under this section. (9) An authority under this section must be in writing, signed by the voting shareholder who granted it. (10) The revocation of an authority under this section must be in writing, signed by the voting shareholder who granted the authority or by the Premier. (11) Notice of an authority under this section, or of the revocation of such an authority, may be published in the Gazette at any time, and, where such a notice is so published, judicial notice is to be taken of the notice and of the authority or revocation, as the case may be. (12) Every authority under this section must be recorded by the Minister administering this Act. (13) The following Ministers may not be authorised under this section— (a) the Treasurer, or (b) a Minister who is also a voting shareholder of the same statutory SOC, or (c) a Minister who, by virtue of this or any other Act, cannot be a voting shareholder of the statutory SOC. (14) This section applies despite any provision of the Corporations legislation that is the subject of a declaration made for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 by regulations made under section 20G. (15) This section does not affect the operation of section 36 or 37 of the Constitution Act 1902. (16) In this section, a reference to a function of a voting shareholder includes a reference to any function of a voting shareholder whether conferred or imposed— (a) by the constitution of the statutory SOC, or (b) by the terms, express or implied, of this or any other Act or of any instrument under this or any other Act, or (c) by or under any other law, and to any other function that is incidental to any such function. 20I Portfolio Minister (1) The Minister who has the duty to administer the foundation charter of a statutory SOC is the portfolio Minister of the SOC. (2) However, if— (a) there is not a Minister who is the portfolio Minister under subsection (1), or (b) the Premier is of the opinion that another Minister should be the portfolio Minister, the portfolio Minister of the SOC is the Minister nominated by the Premier by order published in the Gazette. (3) Such a nomination is to be made by reference to a ministerial title. The Premier can be nominated as a portfolio Minister. 20J Directors (1) There is to be a board of directors of a statutory SOC. (2) The board is to consist of not fewer than 3 and not more than 7 directors appointed by the Governor on the recommendation of the voting shareholders. (3) The directors are to be persons who, in the opinion of the voting shareholders, will assist the SOC to achieve its principal objectives. (4) (Repealed) (5) The chief executive officer may be appointed as a director. (6) The board is accountable to the voting shareholders in the manner set out in Part 4 and in the constitution of the SOC. (7) Schedule 8 has effect with respect to the constitution and procedure of the board. 20K Chief executive officer (1) Every statutory SOC is to have a chief executive officer. (2) The Governor, on the recommendation of the portfolio Minister, may appoint the chief executive officer of a statutory SOC. Such an appointment cannot be effected unless it is recommended by the board. (3) The chief executive officer of a statutory SOC may delegate any functions of the chief executive officer to an employee of the SOC, but this power is subject to any directions of the board. (4) Schedule 9 has effect with respect to the chief executive officer of a statutory SOC. 20L Operation and management (1) All decisions relating to the operation of a statutory SOC are to be made by or under the authority of the board. (2) The chief executive officer of a statutory SOC is, subject to subsection (1), responsible for the day to day management of the operation of the SOC in accordance with the general policies and specific directions of the board. 20M Staff (1) A statutory SOC may employ such staff as it requires to exercise its functions. (2) A statutory SOC may fix the salary, wages and conditions of its staff in so far as they are not fixed by or under any other Act or law. (3) The regulations may make provision for or with respect to the employment of the staff of a statutory SOC, including the conditions of employment and the discipline of any such staff. (4) Any such regulations relating to the conditions of employment or the discipline of staff— (a) have effect subject to any relevant award made by a competent industrial tribunal and to any industrial agreement or enterprise agreement to which the SOC is a party, and (b) have effect despite any determination of the SOC under subsection (2). (5) Except as provided by the regulations under this Act, this section does not apply to the appointment, employment or conditions of employment of the chief executive officer of a statutory SOC. (6) Except as provided by the regulations under this Act, this section applies to a subsidiary of a statutory SOC (other than a company) and its staff in the same way as it applies to the SOC and its staff. 20N Non-commercial activities (1) If the portfolio Minister wishes a statutory SOC to perform activities, or to cease to perform activities, or not to perform activities, in circumstances where the board considers that it is not in the commercial interests of the SOC to do so, that Minister with the approval of the Treasurer may, by written notice to the board, direct the SOC to do so in accordance with any requirements set out or referred to in the notice. (2) The SOC is required to comply with any such direction. (3) The SOC is entitled to be reimbursed, from money advanced by the Treasurer or appropriated by Parliament for the purpose, amounts equal to— (a) the net cost of performing any such activities, including the cost of capital, and (b) the net cost of complying with a direction to cease to perform or not to perform any such activities. (4) The amounts and times of payment of those amounts are as agreed between the Treasurer and the SOC or (failing agreement) as determined by a suitably qualified person or persons nominated by the Premier. (5) The SOC may be reimbursed, from money advanced by the Treasurer or appropriated by Parliament for the purpose, amounts not exceeding the estimated net amount of revenue forgone through ceasing to perform or not performing any such activities, as determined by the Treasurer having regard to such factors as the Treasurer considers relevant in the circumstances. 20O Power of portfolio Minister to notify board of public sector policies (1) The portfolio Minister with the approval of the Treasurer may notify the board of a statutory SOC, in writing, of a public sector policy that is to apply to the SOC and its subsidiaries if the portfolio Minister is satisfied that it is necessary to give the notification in the public interest. (2) The board must ensure that the policy is carried out in relation to the SOC and must, as far as practicable, ensure that the policy is carried out in relation to its subsidiaries. (3) Before giving a notification under this section, the portfolio Minister must— (a) consult with the board, and (b) request the board to advise the portfolio Minister whether, in its opinion, carrying out the policy would not be in the best interests of the SOC or any of its subsidiaries. (4) The SOC may be reimbursed, from money advanced by the Treasurer or appropriated by Parliament for the purpose, amounts not exceeding the estimated net cost of complying with such a notification, or the estimated net amount of revenue forgone through complying with such a notification, as determined by the Treasurer having regard to such factors as the Treasurer considers relevant in the circumstances. (5) The portfolio Minister is required to cause a notice to be published in the Gazette setting out the reasons why a notification was given under this section and why it is in the public interest that the notification be given. (6) A notice referred to in subsection (5) is to be published within 1 month after the notification is given. 20P Power of portfolio Minister to give directions in public interest (1) The portfolio Minister with the approval of the Treasurer may give the board of a statutory SOC a written direction in relation to the SOC and its subsidiaries if the portfolio Minister is satisfied that, because of exceptional circumstances, it is necessary to give the direction in the public interest. (2) The board must ensure that the direction is carried out in relation to the SOC and must, as far as practicable, ensure that the direction is complied with in relation to its subsidiaries. (3) Before giving a direction under this section, the portfolio Minister must— (a) consult with the board, and (b) request the board to advise the portfolio Minister whether, in its opinion, complying with the direction would not be in the best interests of the SOC or any of its subsidiaries. (4) The SOC may be reimbursed, from money advanced by the Treasurer or appropriated by Parliament for the purpose, amounts not exceeding the estimated net cost of complying with such a direction, or the estimated net amount of revenue forgone through complying with such a direction, as determined by the Treasurer having regard to such factors as the Treasurer considers relevant in the circumstances. (5) The portfolio Minister is required to cause a notice to be published in the Gazette setting out the reasons why a direction was given under this section and why it is in the public interest that the direction be given. (6) A notice referred to in subsection (5) is to be published within 1 month after the direction is given. 20Q Constitution of statutory SOCs (1) A statutory SOC is to have a constitution. (2) As far as practicable, the constitution of a statutory SOC is to have the same operation and effect in relation to the SOC as the constitution of a company has in relation to the company. (3) The constitution of a statutory SOC may contain matters that, for a company, would be found in the Corporations Act 2001 of the Commonwealth. (4) The constitution of a statutory SOC may make provision for or with respect to the provision, form, custody and use of the seal of the SOC. Any such provisions have effect despite section 50 of the Interpretation Act 1987. (5) The constitution of a statutory SOC may contain provisions regarding the manner of alteration or replacement of the constitution. (6) The Ministers who are the voting shareholders of a statutory SOC are responsible for ensuring that the constitution of the SOC at all times contains provisions to the effect of those required by Schedule 6. (7) The constitution may contain other provisions, so long as they are not inconsistent with the provisions referred to in subsection (6) or any other provisions of this Act. (8) This section does not apply to the extent provided in resolutions of both Houses of Parliament. 20R Constitution of subsidiaries (1) The Ministers who are the voting shareholders of a statutory SOC are responsible for ensuring that the constitution of every subsidiary of the SOC at all times contains provisions to the effect of those required by Schedule 7. (2) The constitution may contain other provisions, so long as they are not inconsistent with the provisions referred to in subsection (1) or any other provisions of this Act. (3) This section does not apply to the extent provided in resolutions of both Houses of Parliament. 20S Dividends (1) A statutory SOC is to have a share dividend scheme, as provided in its constitution, in a form approved by the Treasurer. (2) The board of a statutory SOC and the voting shareholders may agree that payments required to be made by the SOC or any of its subsidiaries in respect of dividends will be applied in the purchase of shares by shareholders in the SOC. (3) If any such payments are applied in the purchase of shares, the payments may be appropriated for that purpose without being paid into the Consolidated Fund. (4) Otherwise, dividends declared for a statutory SOC or any of its subsidiaries and payable to voting shareholders are to be paid to the Treasurer on behalf of the State for payment into the Consolidated Fund. (5) Nothing in this section affects the operation of section 5.4 of the Government Sector Finance Act 2018 in relation to statutory SOCs. However, if the Treasurer requires a statutory SOC to pay an amount by way of a financial distribution under that section, the Treasurer must include in the notice to be published under that section in the Gazette the reasons for requiring the payment to be made under that section rather than pursuant to the share dividend scheme under this section. 20T Tax-equivalents (1) A statutory SOC must from time to time pay to the Treasurer for payment into the Consolidated Fund such amounts as the Tax Assessor determines to be equivalent to the amounts that would be payable by the SOC if it were liable to pay taxes under the law of the Commonwealth. (2) The SOC is not required to make payments under this section to the extent that it is or becomes liable to pay any such taxes. (3) Payments are to be made under this section on such terms as the Tax Assessor determines to be equivalent to the terms on which the amounts would be payable (including terms as to instalments and times of payment) if the SOC were liable to pay corresponding taxes under the law of the Commonwealth. (4) The SOC and the Treasurer may enter into agreements regarding the amounts to be paid under this section or the terms on which they are to be paid, and any such agreements have effect despite anything in subsections (1) and (3). (5) The determinations of the Tax Assessor under this section are to be made in such a way as to give effect to any such agreements. (6) Any such determination of the Tax Assessor is final, and the Treasurer and the SOC are required to make all the necessary payments and refunds to give effect to the determination. (6A) If a refund is required, the Treasurer, or an authorised person, may direct payment out of the Consolidated Fund of the amount required to be refunded. The Consolidated Fund is appropriated to the necessary extent to enable payment of such refunds. (7) The Premier may nominate any person or persons to be the Tax Assessor for any one or more statutory SOCs, and may revoke any such nomination. (8) This section applies to the subsidiaries of a statutory SOC in the same way as it applies to the SOC, and (where relevant) applies to the SOC and its subsidiaries as a group. (9) Amounts required to be paid under this section are called tax-equivalents. (10) In this section— authorised person means the Chief Commissioner of State Revenue, or a person employed in the Department of Finance, Services and Innovation authorised by the Chief Commissioner of State Revenue to exercise the functions of an authorised person under this section. Tax Assessor, in relation to a statutory SOC, means the person nominated for the time being under subsection (7) as the Tax Assessor for the SOC. 20U Government guarantee (1) The obligations of a statutory SOC or any of its subsidiaries are not guaranteed by the State of New South Wales, except to the extent that the board of the SOC and the voting shareholders agree in writing. (2) Any liability arising from an agreed guarantee is to be met out of the Consolidated Fund, which is appropriated accordingly. (3) The voting shareholders may, after consultation with the board of the SOC, fix charges to be paid by the SOC or any of its subsidiaries to the Treasurer in respect of an agreed guarantee, either generally or in so far as it relates to specified matters. (4) Payments by the SOC or any of its subsidiaries to the Treasurer in respect of any such charges are required to be made at such times, and in such instalments, as the Treasurer determines. 20V State taxation (1) In this section— exempt matter means— (a) the issue or transfer of shares of a statutory SOC or any of its subsidiaries to eligible Ministers, or (b) the transfer of assets, rights or liabilities to a statutory SOC or any of its subsidiaries from the State, any authority of the State or any subsidiary of an authority of the State, or (c) giving effect to any of the above. tax includes stamp duty and any other tax, duty, fee, levy or charge, but does not include tax-equivalents. (2) Tax under a law of the State is not payable in relation to— (a) an exempt matter, or (b) anything done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, an exempt matter. (3) The Treasurer or a person authorised by the Treasurer may, by a written instrument, certify that— (a) a specified matter or thing is an exempt matter, or (b) a specified thing was done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a specified exempt matter. (4) For all purposes and in all proceedings, a certificate under this section is conclusive evidence of the matters certified, except so far as the contrary is established. 20W Private corporations and subsidiaries (1) A statutory SOC may, subject to this section— (a) form or participate in the formation of private corporations, and (b) acquire interests in private corporations, and (c) sell or otherwise dispose of interests in private corporations, whether or not the activities or proposed activities of any such private corporation are related to the functions of the SOC as set out in its foundation charter. (2) A statutory SOC or any of its subsidiaries may not form, participate in the formation of or acquire subsidiaries without the prior written approval of the voting shareholders. (3) A statutory SOC or any of its subsidiaries may not acquire or dispose of shares of a company, or participate in any other transaction, resulting in the company becoming or ceasing to be a subsidiary, without the prior written approval of the voting shareholders. (4) In seeking the approval of the voting shareholders, the SOC or subsidiary is required to provide the voting shareholders with such information as they require, including such kinds of information (if any) as are prescribed by the regulations under this Act. (5) In this section— private corporation means a corporation within the meaning of the Corporations Act 2001 of the Commonwealth formed in or outside New South Wales. 20X Acquisition and disposal of assets, investments and liabilities (1) A statutory SOC or any of its subsidiaries may not acquire or dispose of fixed assets or investments, including shares in a company, without the prior written approval of the voting shareholders— (a) where the total assets and investments being acquired or disposed of (together with any other such acquisitions or dispositions during the last 12 months) represent an amount in excess of the prescribed percentage of the written down value of the SOC's consolidated fixed assets and investments as disclosed in its last audited financial report, or (b) where it could reasonably be expected that the inclusion or exclusion, respectively, of the total current year's profit or loss of such acquisition or disposition (together with any other such acquisitions or dispositions during that year) would result in an increase in or diminution of the SOC's consolidated pre-tax operating profit or loss for the year of acquisition or disposal in excess of the prescribed percentage compared with that consolidated pre-tax operating profit or loss disclosed in its last audited financial report. (2) In the case of an acquisition to which this section applies, the amount is the cost price of the asset or investment. (3) In the case of a disposition to which this section applies, the amount is the book value of the consideration or disposal, whichever is the greater. (4) A statutory SOC or any of its subsidiaries may not acquire or dispose of any assets or liabilities, in contravention of any requirements of the regulations under this Act. (5) In seeking the approval of the voting shareholders under this section, the SOC or subsidiary is required to provide the voting shareholders with such information as they require, including such kinds of information (if any) as are prescribed by the regulations under this Act. (6) The prescribed percentage is 10 per cent or such other percentage as is prescribed by the regulations under this Act. (7) All or any specified requirements of subsections (1), (2) and (3) do not apply in such circumstances as are specified in a written notice given to a statutory SOC or a subsidiary of a statutory SOC by the Treasurer. (8) The Treasurer may not give such a notice unless satisfied that the requirements are incapable of application to the SOC or subsidiary in the circumstances or would apply to it in a clearly inappropriate manner. (9) The voting shareholders may, by written notice, direct a statutory SOC or its subsidiaries not to dispose of any specified asset. 20Y Sale or disposal of main undertaking (1) None of the main undertakings of a statutory SOC, and none of the main undertakings of any of its subsidiaries, may be sold or disposed of except with the prior written approval of the voting shareholders. (2) The main undertakings are as specified in the most recent statement of corporate intent of the SOC. Division 3 Legal capacity and powers of statutory SOCs 20Z Interpretation (1) In this Division— officer of a statutory SOC means— (a) a director of the SOC, or (b) the chief executive officer of the SOC, or (c) an employee of the SOC. restriction includes prohibition. (2) In this Division— (a) the doing of an act by a statutory SOC includes a reference to the making of an agreement by the SOC and a reference to a transfer of property to or by the SOC, and (b) a reference to power includes a reference to legal capacity. 20ZA Objects of Division (1) The objects of this Division include— (a) providing that the doctrine of ultra vires does not apply to statutory SOCs, and (b) ensuring that statutory SOCs give effect to any restrictions on their objects or powers, but without affecting the validity of their dealings with outsiders. (2) This Division is to be construed and have effect accordingly. 20ZB General powers of statutory SOCs (1) A statutory SOC has, for or in connection with the performance of its functions, all the powers of a natural person, including for example, the power— (a) to enter into contracts, and (b) to acquire, hold, dispose of and deal with property, and (c) to appoint agents and attorneys, and