Totalizator Agency Board Privatisation Act 1997 (NSW)

Totalizator Agency Board Privatisation Act 1997 No 43 An Act to provide for the conversion of the Totalizator Agency Board into a public company and for the future sale of that company to the public; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Totalizator Agency Board Privatisation Act 1997. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are to provide for the conversion of the Totalizator Agency Board (TAB) into a public company and for its sale by a public float, and in particular— (a) to convert TAB from a statutory authority into a public company limited by shares and with the name TAB Limited, and (b) to repeal provisions of the Totalizator (Off-course Betting) Act 1964 and to apply the Corporations Law to TAB after its conversion, and (c) to authorise the exclusion from the sale of TAB of any part of the business undertakings of TAB and its subsidiaries, and to reorganise those businesses before the sale, and (d) to authorise the sale of TAB by a public float (comprising disposal of the shares issued to the State) and to limit to 10% the maximum shareholding of any one shareholder. 4 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. business undertaking of TAB or of a TAB subsidiary means all the assets, rights and liabilities of TAB or the subsidiary. conversion means the conversion of TAB into a public company on the commencement of section 12. excluded undertaking means any assets, rights or liabilities of TAB or a TAB subsidiary that the Minister has directed to be excluded under Part 7. exercise a function includes perform a duty. function includes a power, authority or duty. instrument means an instrument (other than this Act) 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 or process of a court. liabilities means any liabilities, debts and obligations (whether present or future and whether vested or contingent). Minister see section 5. Ministerial Holding Corporation means the Ministerial Holding Corporation constituted by section 37B of the State Owned Corporations Act 1989. rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent). share means a share in the share capital of a body corporate. State of New South Wales includes the Crown in right of New South Wales and the Government of New South Wales. TAB means the body corporate called the Totalizator Agency Board and constituted under the Totalizator (Off-course) Betting Act 1964 (its name being changed after the conversion to TAB Limited). TAB Limited means the company known as TAB Limited established by this Act. TAB Limited subsidiary means a subsidiary of TAB Limited within the meaning of the Corporations Law. TAB subsidiary means a subsidiary of TAB or TAB Limited, within the meaning of the Corporations Law. (2) A reference in this Act to the business undertaking of TAB or of a TAB subsidiary at any particular time does not include a reference to any part of that undertaking that has been excluded or transferred by this Act before that time. (3) Notes in the text of this Act do not form part of this Act. 5 Minister (1) A reference in this Act to the Minister is— (a) if there is for the time being only one nominated Minister under this section—a reference to that Minister, or (b) if there is for the time being more than one nominated Minister under this section—a reference to all those Ministers. (2) A nominated Minister is a Minister nominated by the Premier by order published in the Gazette as a nominated Minister. (3) Such a nomination is to be made by reference to ministerial title. The Premier can be nominated as nominated Minister. (4) One or more Ministers may be nominated for the time being under this section. (5) If no Minister is for the time being nominated under this section, a Minister having the duty to administer any provisions or aspect of this Act is a nominated Minister. Part 2 6–9 (Repealed) Part 3 Management of TAB before conversion to company 10 Directors and meetings of TAB before conversion to company (1) As from the commencement of this Part, TAB is to consist of at least 5 directors appointed by the Minister on such terms and conditions as are determined by the Minister. (2) Schedule 1 has effect with respect to the directors and meetings of TAB. 11 (Repealed) Part 4 Conversion of TAB to company 12 TAB taken to be registered under Corporations Law as public company (1) On the commencement of this section— (a) the application for registration as a company referred to in section 8 is taken to have been granted, and (b) TAB is taken to have been registered under section 137 of the Corporations Law— (i) by the name "TAB Limited", and (ii) as a public company, and as a company limited by shares, within the meaning of the Corporations Law, and (c) the name "TAB Limited" is taken to have been registered in respect of TAB Limited under section 374 (5) of the Corporations Law. (2) The date of commencement of TAB Limited's registration as a company under Division 3 of Part 2.2 of the Corporations Law is taken to be the commencement of this section. (3) For the purposes of Division 3 of Part 2.2 of the Corporations Law, TAB Limited is taken to have been, immediately before the commencement of this section, and to be on that commencement, a corporation within the meaning of the Corporations Law. 13 New name of TAB (1) On the conversion, TAB's name is, by force of this subsection, changed to "TAB Limited". (2) Section 382 (4) of the Corporations Law applies in relation to the change of name made by subsection (1) as if— (a) TAB were a company, within the meaning of the Corporations Law, when the change was made, and (b) the change was made under the Corporations Law. (3) This section has effect despite anything in the Corporations Law, but nothing in this section prevents— (a) TAB Limited from later changing its name under section 382 of the Corporations Law, or (b) the cancellation, under Part 4.2 of the Corporations Law, of the registration of a name. (4) TAB Limited or a TAB Limited subsidiary is not entitled to use in connection with its business a name that suggests that it is associated with the State of New South Wales. This subsection does not apply during any period to which Part 5 applies. 14 Memorandum and articles of TAB Limited to have effect (1) As from the conversion, the proposed memorandum and articles of association lodged under section 8— (a) are respectively the memorandum and articles of association of TAB Limited, and (b) bind TAB Limited and its members accordingly. (2) As from the conversion, the Corporations Law applies in relation to TAB Limited's memorandum and articles of association as if they had been registered as such under the Corporations Law. 15 Membership of TAB Limited (1) The State of New South Wales, as the holder of shares in TAB Limited at the conversion, becomes (by force of this subsection) a member of TAB Limited at the conversion. (2) The State of New South Wales is, in relation to membership of TAB Limited, entitled to the same rights, privileges and benefits, and is subject to the same duties, liabilities and obligations, as if it had become a member of TAB Limited under its memorandum and articles of association. 16 Minister may act for State as shareholder The Minister may act for or on behalf of the State of New South Wales in connection with— (a) the rights, privileges and benefits, and (b) the duties, liabilities and obligations, of the State as the holder of shares in TAB Limited issued to the State. 17 Continuity of TAB and construction of references to TAB (1) Without limiting any other provision of this Act or the Corporations Law, TAB Limited is a continuation of, and the same legal entity as, TAB (as it existed before the conversion). (2) After the conversion, a reference in any other Act or in any other instrument made under any Act or in any other document of any kind to the Totalizator Agency Board or TAB is to be read as (or as including) a reference to TAB Limited, unless it is required by this Act to be read as a reference to some other person because it relates to an excluded undertaking or an undertaking transferred to a TAB subsidiary. (3) This section is to be read subject to clause 1 of Schedule 5 (Savings and transitional regulations). 18 Continuity of contracts and arrangements (1) Without limiting any other provision of this Act or the regulations, TAB Limited is, on and after the conversion, entitled to the benefit of, and taken to be a party to, any contract or arrangement entered into by TAB with any person and having force immediately before the conversion. (2) Section 19 does not affect the operation or continuity of any contract or arrangement referred to in subsection (1). (3) This section is subject to the operation of Part 9 (Vesting of undertaking on transfer). 19 (Repealed) Part 5 Management of TAB Limited after conversion and before sale 20 When Part applies (1) This Part applies during any period after the conversion when a majority of the issued shares in TAB Limited are held by the State of New South Wales. (2) A day may be appointed by proclamation published on the NSW legislation website for the purposes of the cessation of the operation of this section. If a day is so appointed, this Part ceases to apply on and from that day, despite subsection (1). 21 Ministerial control of TAB Limited (1) The board of directors of TAB Limited is, in the exercise of its functions, subject to the control and direction of the Minister. (2) Neither the enactment of this section nor the exercise of the Minister's powers under this section constitutes a Minister as a director of TAB Limited or a person who participates in the management of TAB Limited. (3) A director of TAB Limited is not personally liable in any civil or criminal proceedings (including proceedings for a breach of any duty under the Corporations Law) for anything done or omitted for the purpose only of complying with a direction of the Minister under this section. 22 Status of TAB Limited (1) TAB Limited and any TAB Limited subsidiary to which any part of TAB's business undertaking is transferred under this Act are agencies through which the State of New South Wales carries out the activity of conducting on-course and off-course totalizator betting in New South Wales, and any other activity authorised to be conducted by a licence under the Totalizator Act 1997, and for that purpose it is a public authority of the State. (2) However, TAB Limited or any TAB Limited subsidiary— (a) is not, and does not represent, the State of New South Wales except by express agreement with the Minister, and (b) is not exempt from any rate, tax, duty or other impost imposed by or under any law of New South Wales merely because it is a company in which the State of New South Wales holds shares, and (c) cannot render the State of New South Wales liable for any debts, liabilities or obligations of TAB Limited or any TAB Limited subsidiary, unless this Act or any other Act or law otherwise expressly provides. 23 Application of certain provisions of State Owned Corporations Act 1989 to TAB Limited The following provisions of the State Owned Corporations Act 1989 apply to TAB Limited and a TAB Limited subsidiary as if it were a State owned corporation (with or without any modification prescribed by the regulations)— (a) such of the provisions of Part 4 (Accountability) as are prescribed by the regulations, (b) section 13 (Memorandum and articles of subsidiaries) but only in relation to the provisions contained in clauses 2 and 3 (2) of Part 2 of Schedule 3 to that Act, (c) section 36 (Application of other Acts), (d) any other provision prescribed by the regulations. Part 6 Reorganisation of TAB business undertaking in connection with conversion and sale of TAB 24 Minister may direct transfer of parts of TAB business undertaking to TAB subsidiary (1) The Minister may, by order in writing, direct that any part or parts of TAB's business undertaking be transferred to a TAB subsidiary or TAB subsidiaries specified in the order. (2) Part 9 applies to an order under this section. 25 Minister may direct transfer of parts of business undertaking of TAB subsidiary to other subsidiaries or to TAB (1) The Minister may, by order in writing, direct that any part or parts of the business undertaking of a TAB subsidiary (including anything transferred under this Part) be transferred to another TAB subsidiary specified in the order or to TAB. (2) Part 9 applies to an order under this section. 26 Allocation of transferred assets to capital and reserves (1) The Minister may, by order in writing, direct that any assets transferred to a TAB subsidiary or to TAB under this Part are to be allocated to capital and reserves in such amounts and in accordance with such requirements as are specified in the order. (2) Any shares issued in accordance with a direction under this Part are taken to have been issued in consideration of the vesting in the TAB subsidiary or TAB under this Part of the assets allocated to capital. 27 Time when transfers may be effected (1) An order under this Part may be made before, on or after the conversion of TAB into a public company. (2) After the conversion, any such order may not be made unless all the shares in TAB Limited are held by the State of New South Wales. However, the order may be expressed to take effect after the State has ceased to hold all or any of those shares. Part 7 Exclusion of parts of business undertaking from TAB or TAB subsidiary 28 Excluded undertakings (1) The Minister may direct, by order in writing, that any assets, rights or liabilities that are part of the business undertaking of TAB or a TAB subsidiary be excluded from that business undertaking and transferred to the Ministerial Holding Corporation or another person on behalf of the State of New South Wales. (2) If an excluded undertaking includes money, the order may direct the payment of the money into the Consolidated Fund. (3) An order under this section may define an excluded undertaking by reference to a business undertaking other than any part specified in the order. (4) Part 9 applies to an order under this section. 29 Time when exclusion may be effected (1) An order under this Part may be made before, on or after the conversion of TAB into a public company. (2) After the conversion, any such order may not be made unless all the shares in TAB Limited are held by the State of New South Wales. However, the order may be expressed to take effect after the State has ceased to hold all or any of those shares. 30 Sale or retention of excluded undertaking (1) The Ministerial Holding Corporation or any other person to whom any excluded undertaking is transferred may— (a) sell or otherwise dispose of the whole or any part of the excluded undertaking, or (b) retain the whole or any part of the excluded undertaking and conduct any business to which it relates. (2) The Minister may, for the purposes of any such sale or other disposal, direct by order in writing that the excluded undertaking concerned be transferred to the body or person to whom it is being sold or otherwise disposed of. (3) Part 9 applies to an order under this section. 31 TAB or subsidiary may act with respect to excluded undertaking The Ministerial Holding Corporation or any other person to whom any excluded undertaking is transferred under this Part may enter into an agreement or arrangement with TAB or a TAB subsidiary for the exercise by TAB or the TAB subsidiary (as an agent or otherwise) of such functions relating to the excluded undertaking as are specified in the agreement or arrangement. Part 8 Sale of TAB Limited by public float Division 1 Sale process 32 Sale of TAB Limited by public float (1) The Minister may make arrangements for the sale of TAB Limited by a public float, comprising the disposal of the shares held by the State of New South Wales. (2) The arrangements may include underwriting agreements and the issue of a prospectus. (3) The Auditor-General is to examine the sale of TAB Limited as he considers appropriate and is to report as soon as practicable after the sale to both Houses of Parliament. (4) The Minister is to ensure that the Auditor-General is given access to such information and resources as may be necessary to enable the Auditor-General to exercise the functions conferred by this section. (5) The Auditor-General's examination under this section is to accommodate the timetable for the sale of TAB Limited determined by the Minister. 33 State may dispose of its shares (1) The State of New South Wales may, subject to this Part, dispose of all or any of its shares in TAB Limited. (2) The Minister is authorised to enter into agreements for the transfer to any person of those shares. Without limitation, any such person may be a body corporate. 34 (Repealed) 35 No government guarantees The obligations of TAB Limited are not guaranteed by the State of New South Wales. Division 2 Maximum shareholding restrictions 36 Definitions (1) In this Division— officer, in relation to TAB Limited, has the same meaning as in section 9 of the Corporations Law. voting share, in relation to TAB Limited, has the same meaning as in section 9 of the Corporations Law. (2) For the purposes of this Division, a person is an associate of another— (a) if the Minister— (i) is of the opinion that the person and the other are likely to act in concert with a view to taking control of, or exercising significant influence over, TAB Limited against the public interest, and (ii) by notice in writing served on TAB Limited, declares that the person is an associate of the other, or (b) if the person is an associate of the other within the meaning of Division 2 of Part 1.2 of the Corporations Law, with that Division modified by omitting sections 13, 14, 16 (2) and 17 of that Law and by substituting for paragraphs (b) and (c) of section 12 (1) of that Law the following— or (b) the primary person's entitlement, as provided by section 609, to shares in a body corporate. (3) Where notice of a declaration under subsection (2) is served on TAB Limited, the Minister must, at the same time or as soon as practicable thereafter, cause written notice of the declaration to be served on the persons to whom the declaration relates. (4) For the purposes of this Division, a person has a relevant interest in a share if, and only if, the person would be taken to have a relevant interest in the share because of Division 5 of Part 1.2 of the Corporations Law if sections 33 and 35 (c) of that Law were disregarded. (5) For the purposes of this Division, the voting shares in TAB Limited to which a person (being TAB Limited or any other person) is entitled include voting shares in TAB Limited to which the person is entitled in accordance with section 609 of the Corporations Law, as if in that section a reference to an associate were a reference to an associate for the purposes of this Division and a reference to a relevant interest were a reference to a relevant interest to which subsection (4) of this section applies. (6) A reference in this Division to the Corporations Law is a reference to that Law as it would apply if references in that Law to a body corporate, corporation or company included references to— (a) a body corporate of any kind wherever formed or incorporated and whether formed or incorporated under that Law or any other law, and (b) any unincorporated body, being a society, association, company of proprietors or other body, wherever formed, that, under the law of its place of formation, may sue or be sued, or may hold property in the name of the secretary or some other officer of the society, association or body, or in the name of any trustee or trustees, and (c) any unincorporated body, being a society, association, company of proprietors or other body or undertaking to which is applied, under the laws of the place of its formation, with or without exceptions, a law in force in that place relating to companies or corporations as if it were a company or corporation within the meaning of that law. (7) The regulations may provide that relevant interests, or particular classes of relevant interests, in shares, or in particular classes of shares, are, in such circumstances and subject to such conditions (if any) as are specified in the regulations, to be disregarded for such purposes as are specified in the regulations. (8) If a whole or a portion of the share capital of TAB Limited consists of stock, a reference in this Division to a number of shares in TAB Limited as a percentage is, in relation to an amount of stock, a reference to the amount of stock that represents that number of shares. 36A References to Corporations Law in this Division A reference in this Division to the Corporations Law (or a provision of that Law) is a reference to that Law (or the provision of that Law) as in force on 6 March 1998. 37 Application of Division (1) This Division applies in relation to TAB Limited whenever TAB Limited or a TAB Limited subsidiary holds a licence under the Totalizator Act 1997. (2) This Division (including any provision of the Corporations Law referred to or applied for the purposes of this Division) applies in relation to any transaction, agreement, arrangement, understanding or undertaking— (a) whether the transaction, agreement, arrangement, understanding or undertaking is entered into, or made, in this State or elsewhere, and (b) whether the shares (if any) to which the transaction, agreement, arrangement, understanding or undertaking relates are registered in this State or elsewhere, and (c) whether the proper law of the transaction, agreement, arrangement, understanding or undertaking is the law of this State or not. 37A Exemption for nominated company (1) The other provisions of this Division do not apply to or in respect of the nominated company or a related body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) of the nominated company (other than TAB Limited or a TAB Limited subsidiary), subject to this section. (2) If the Racing Minister is satisfied that— (a) the nominated company (or, if the nominated company is a company referred to in paragraph (c) of the definition of nominated company in subsection (6), the ultimate holding company (within the meaning of the Corporations Act 2001 of the Commonwealth) of the nominated company) is no longer listed on the Australian Stock Exchange, or (b) there no longer exists, under the law of another jurisdiction or otherwise, a prohibition on shareholding interests in the nominated company (or, if the nominated company is a company referred to in paragraph (c) of the definition of nominated company in subsection (6), in the shareholding interests in the ultimate holding company (within the meaning of the Corporations Act 2001 of the Commonwealth) of the nominated company) with substantially the same effect as the prohibition on shareholding interests in TAB Limited under the other provisions of this Division, or (c) TAB Limited is not wholly owned by the nominated company or the nominated company has not taken all reasonable steps to acquire a relevant interest in all the issued voting shares (within the meaning of the Corporations Act 2001 of the Commonwealth) of TAB Limited, or (d) TAB Limited is not a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the nominated company, the Racing Minister is to serve a notice on the nominated company declaring that the exemption granted by subsection (1) is suspended on and from the day specified in the notice (being a day that is not less than 3 months after service of the notice). (3) The Racing Minister is, by further notice served on the nominated company, to revoke a notice under subsection (2) and terminate the suspension effected by that notice if satisfied that— (a) the nominated company or the ultimate holding company (within the meaning of the Corporations Act 2001 of the Commonwealth) of the nominated company (as the case may require) has relisted on the Australian Stock Exchange, or (b) a prohibition of the kind referred to in subsection (2) (b) has been restored, or (c) TAB Limited is wholly owned by the nominated company or the nominated company has taken all reasonable steps to acquire a relevant interest in all the issued voting shares (within the meaning of the Corporations Act 2001 of the Commonwealth) of TAB Limited (as the case may be), or (d) TAB Limited is a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the nominated company, as the case may require. (4) A notice under subsection (2) that is in force has effect according to its tenor. (5) More than one notice may be served under each of subsections (2) and (3). (6) In this section— nominated company means one of the following— (a) Unitab Limited, being the company of that name (ACN 085 691 738), formerly named TAB Queensland Limited, (b) TABCORP Holdings Limited, being the company of that name (ACN 063 780 709), formerly named TABCORP Limited, (c) a wholly owned subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of a company referred to in paragraph (a) or (b), as nominated by the Racing Minister by notice (being an irrevocable notice) published in the Gazette. Racing Minister means the Minister administering the Totalizator Act 1997. 38 Prohibited shareholding interest (1) A person has a prohibited shareholding interest in TAB Limited if the person is entitled to voting shares in TAB Limited that together constitute more than 10% of the total number of voting shares in TAB Limited. (2) For the purposes of this Division, TAB Limited or a TAB Limited subsidiary cannot have a prohibited shareholding interest in TAB Limited. (3) A person must not have a prohibited shareholding interest in TAB Limited. A person who contravenes this subsection is guilty of an offence. Maximum penalty—100 penalty units. 39 Power to require information relating to entitlement to shares in TAB Limited (1) The Minister, or a director or the secretary of TAB Limited, may, by notice in writing served on a person who is, or is suspected by the Minister, director or secretary, as the case may be, of being entitled to shares in TAB Limited, require the person to furnish information specified in the notice for the purpose of determining whether that person or any other person has, or is taking action to acquire, a prohibited shareholding interest in TAB Limited. (2) A notice under subsection (1) may require the person on whom the notice is served, or, if that person is a corporation, 2 directors of the corporation, to verify by statutory declaration any information furnished in compliance with the notice. (3) If— (a) a person on whom a notice under subsection (1) has been served fails to furnish, within the period required by the notice, the information required by the notice, verified as required by the notice, or (b) information furnished by the person in response to the notice is, in the opinion of the Minister, by reason of anything included in it or omitted from it, false or misleading in a material particular, the Minister may, by reason only of that fact, by notice in writing served on TAB Limited, do one or more of the following— (c) declare that the person is an associate of another, or that another is an associate of that person, (d) declare that the person, or another to whom a declaration under paragraph (c) relates, is entitled to specified shares in TAB Limited, (e) declare that the person, or another to whom a declaration under paragraph (c) relates, has a prohibited shareholding interest in TAB Limited. (3A) A declaration under subsection (3) has effect according to its tenor for the purposes of this Division. (4) If notice of a declaration under subsection (3) is served on TAB Limited, the Minister must, at the same time or as soon as practicable thereafter, cause written notice of the declaration to be served— (a) on the person to whom the declaration relates, and (b) in the case of a declaration under paragraph (e) of that subsection—on the holder of the shares to which the declaration relates. (5) A person who fails to comply with a requirement of a notice under this section, or in purported compliance with such a requirement furnishes information that is false or misleading in a material particular, is guilty of an offence. Maximum penalty—100 penalty units. (6) It is a defence to a prosecution of a person for an offence under subsection (5) if it is proved that, at the time the information was furnished, the person believed, on reasonable grounds— (a) in the case of false information—that the information was true, or (b) in the case of misleading information—that the information was not misleading. (7) A person is not liable to be convicted of both an offence under subsection (5) and an offence under Chapter 4 (Perjury, false statements etc) of Part 7 of the Crimes Act 1900 in respect of the same incident. 40 Substantial shareholders to give notice to Minister (1) A person who is required to give notice to TAB Limited under a provision of Part 6C.1 of the Corporations Act 2001 of the Commonwealth must give a copy of the notice to the Minister within the time that the notice is required under that Act to be given to TAB Limited. Maximum penalty—100 penalty units. (2) TAB Limited must notify the Minister in writing within 2 business days after it receives a notice from a person under a provision of Part 6C.1 of the Corporations Act 2001 of the Commonwealth, informing the Minister of the name and address of the person from whom the notice was received. Maximum penalty—100 penalty units. 41 Disposal, forfeiture etc of shares where prohibited shareholding interest (1) If the Minister— (a) makes a declaration under section 39 (3), or (b) forms the opinion and, by notice in writing served on TAB Limited, declares under this subsection, that a person (in this section referred to as the offender) has a prohibited shareholding interest in TAB Limited, the Minister may, by notice in writing served— (c) if the offender holds voting shares in TAB Limited to which the offender is entitled—on the offender, or (d) on any other person who holds voting shares in TAB Limited to which the offender is entitled, declare that the offender or that other person must dispose of the relevant