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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Electricity Industry Restructuring
Bill 2008
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Interpretation 2
Part 2 Restructuring of State electricity industry
4 Authority for transfer of State electricity assets to the
private sector 3
5 Restrictions on transfer of State electricity assets 3
6 Transfer of State electricity assets between public sector
agencies 3
7 Proceeds of restructuring 3
b2007-157-94.d26a
Electricity Industry Restructuring Bill 2008
Contents
Page
Part 3 Facilitating the authorised restructuring
Division 1 Functions of public sector agencies
8 Treasurer's functions for the purposes of the authorised
restructuring 5
9 Restructure SOCs 5
10 Restructure companies 6
11 Functions of State electricity corporations and restructure
entities 6
12 Direction and control of State electricity corporations and
restructure entities 7
13 Establishment of Electricity Assets Ministerial Holding
Corporation 7
Division 2 Arrangements for transfer of assets, staff
and functions
14 Vesting orders 8
15 Transfer of electricity employees 8
16 Effect of transfer of electricity assets between public sector
agencies 8
17 Grant of relevant authorisations 9
18 Acquisition of land by Electricity Assets Ministerial Holding
Corporation 11
Division 3 Operation of other laws
19 State taxes 11
20 Release of information by Auditor-General 12
21 Contracts for sale of land 12
22 Management of electricity trading risks--Trade Practices
exemption 12
23 Transfer by IPO--ownership restrictions 13
Part 4 Miscellaneous
24 Delegation 14
25 Act to bind State and other jurisdictions 14
26 General relationship of Act with other State legislation 14
27 Extraterritorial operation of Act 15
28 Construction of this Act and instruments so as not to
exceed legislative power 15
29 Displacement and exclusion of Corporations legislation 16
30 Protection of contractual and other obligations 17
31 Leases of State electricity assets 18
32 Compensation not payable 19
33 Certificate evidence 20
34 Service or giving of documents 20
Contents page 2
Electricity Industry Restructuring Bill 2008
Contents
Page
35 Offences by corporations 20
36 Proceedings for offences 21
37 Regulations 21
38 Savings, transitional and other provisions 21
39 Amendment of Acts and Regulations 21
Schedule 1 Interpretative provisions 22
Schedule 2 Provisions concerning restructure SOCs 26
Schedule 3 Corporate conversion of State electricity
corporations and restructure SOCs 29
Schedule 4 Vesting of assets, rights and liabilities 31
Schedule 5 Transfer of electricity employees 34
Schedule 6 Ownership restrictions in floated restructure
companies 37
Schedule 7 Savings, transitional and other provisions 49
Schedule 8 Amendment of Acts and Regulation 52
Contents page 3
New South Wales
Electricity Industry Restructuring
Bill 2008
No , 2008
A Bill for
An Act to provide for the restructuring of part of the State electricity industry.
See also the Community Infrastructure (Intergenerational) Fund Bill 2008.
Clause 1 Electricity Industry Restructuring Bill 2008
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Electricity Industry Restructuring Act 2008. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Interpretation 7
(1) Key definitions 8
In this Act: 9
authorised restructuring means the transfer of State electricity assets 10
authorised by Part 2. 11
distribution and transmission assets means electricity power lines and 12
associated equipment and electricity structures that form part of a 13
transmission or distribution system (as defined in the Electricity Supply 14
Act 1995). 15
electricity distributor means a statutory State owned corporation 16
constituted by the Energy Services Corporations Act 1995 as an energy 17
distributor under that Act. 18
Note. A public sector agency to which the business of an electricity distributor 19
is transferred is deemed to be an electricity distributor. See section 16. 20
electricity generator means a statutory State owned corporation 21
constituted by the Energy Services Corporations Act 1995 as an 22
electricity generator under that Act. 23
Note. A public sector agency to which the business of an electricity generator is 24
transferred is deemed to be an electricity generator. See section 16. 25
retail business of an electricity distributor means the business of an 26
electricity distributor other than its distribution and transmission assets. 27
State electricity assets means assets, rights and liabilities of State 28
electricity corporations. 29
State electricity corporation means an electricity generator or 30
electricity distributor. 31
(2) Other interpretative provisions 32
Schedule 1 has effect. 33
Page 2
Electricity Industry Restructuring Bill 2008 Clause 4
Restructuring of State electricity industry Part 2
Part 2 Restructuring of State electricity industry 1
4 Authority for transfer of State electricity assets to the private sector 2
This Act authorises the transfer to the private sector of State electricity 3
assets in any of the following ways (and in no other way): 4
(a) the lease of the power stations of an electricity generator and the 5
transfer of the rest of its business, 6
(b) the transfer of the retail business of an electricity distributor, 7
(c) the transfer by initial public offer of the business of an electricity 8
generator (including its power stations). 9
Note. This is the authorised restructuring for transfers of State electricity 10
assets to the private sector. No other transfer of State electricity assets to the 11
private sector is authorised by this Act. 12
5 Restrictions on transfer of State electricity assets 13
(1) Distribution and transmission assets of an electricity distributor must 14
remain in the ownership of a public sector agency. 15
(2) Assets that form part of the transmission system (as defined in the 16
Electricity Supply Act 1995) of TransGrid must remain in the ownership 17
of a public sector agency. 18
Note. Assets of TransGrid are not State electricity assets and TransGrid is not 19
part of the authorised restructuring. 20
(3) This Act does not prevent an electricity distributor, electricity generator 21
or TransGrid from dealing with or disposing of any of its assets in the 22
ordinary course of its business. 23
6 Transfer of State electricity assets between public sector agencies 24
This Act authorises the transfer of State electricity assets between 25
public sector agencies (whereby State electricity assets are divested 26
from a public sector agency and vested in another public sector agency). 27
7 Proceeds of restructuring 28
(1) The proceeds of the transfer of State electricity assets to the private 29
sector pursuant to the authorised restructuring (the restructure 30
proceeds) belong to and are payable directly to the State. 31
(2) The restructure proceeds paid to the State are to be paid into the NSW 32
Community Infrastructure (Intergenerational) Fund (the Fund) under 33
the Community Infrastructure (Intergenerational) Fund Act 2008. 34
Page 3
Clause 7 Electricity Industry Restructuring Bill 2008
Part 2 Restructuring of State electricity industry
(3) The following deductions are authorised to be made from the restructure 1
proceeds: 2
(a) deduction of such amounts as the Treasurer approves to repay 3
debt and satisfy other liabilities of a public sector agency in 4
respect of State electricity assets transferred for the purposes of 5
the authorised restructuring, 6
(b) deduction of such amounts as the Treasurer approves to 7
reimburse public sector agencies for payments made by them in 8
respect of any tax, duty, fee or charge imposed by any Act or law 9
of the State or any other jurisdiction in connection with a 10
restructure arrangement, 11
(c) deduction of such amounts as the Treasurer approves to satisfy 12
any liability of a public sector agency arising under or in 13
connection with a restructure arrangement, 14
(d) deduction of such amounts as the Treasurer approves to meet 15
expenses reasonably incurred by public sector agencies for the 16
purposes of the authorised restructuring. 17
(4) The restructure proceeds do not include any amount certified by the 18
Treasurer to have been paid to a public sector agency as a tax, duty, fee 19
or charge imposed by any Act or law of the State in connection with a 20
restructure arrangement. 21
(5) The deductions authorised to be made from the restructure proceeds 22
may be made before payment of the restructure proceeds into the Fund 23
or may be made by payment from the Fund. 24
(6) The requirements of this section do not affect the validity of a 25
restructure arrangement. 26
Page 4
Electricity Industry Restructuring Bill 2008 Clause 8
Facilitating the authorised restructuring Part 3
Part 3 Facilitating the authorised restructuring 1
Division 1 Functions of public sector agencies 2
8 Treasurer's functions for the purposes of the authorised restructuring 3
The Treasurer has and may exercise all such functions as are necessary 4
or convenient for the purposes of the authorised restructuring. The 5
functions conferred on the Treasurer by any other provision of this Act 6
do not limit the Treasurer's functions under this section. 7
9 Restructure SOCs 8
(1) A statutory State owned corporation may be established under this Act 9
as a restructure SOC for the purposes of the authorised restructuring. 10
(2) The Governor may by order published in the Gazette: 11
(a) create a corporation under a corporate name specified in the 12
order, and 13
(b) specify the functions of the corporation, and 14
(c) direct that the corporation is established as a statutory State 15
owned corporation and as a restructure SOC. 16
(3) On the day on which the order takes effect: 17
(a) a corporation is constituted with the corporate name and 18
functions specified in the order, and 19
(b) the State Owned Corporations Act 1989 is amended by inserting 20
in Schedule 5, in alphabetical order, the corporate name specified 21
in the order (to establish the corporation as a statutory State 22
owned corporation under that Act), and 23
(c) the State owned corporation thereby established is a restructure 24
SOC for the purposes of this Act. 25
(4) The portfolio Minister of a SOC established under this section is the 26
Minister administering section 13 (Creation of additional energy 27
services corporations) of the Energy Services Corporations Act 1995. 28
(5) Schedule 2 has effect with respect to a restructure SOC. The provisions 29
of that Schedule are in addition to and (except to the extent to which that 30
Schedule otherwise provides) do not derogate from the provisions of the 31
State Owned Corporations Act 1989. 32
Page 5
Clause 10 Electricity Industry Restructuring Bill 2008
Part 3 Facilitating the authorised restructuring
10 Restructure companies 1
(1) The Treasurer may for the purposes of the authorised restructuring 2
establish, or direct the establishment of, companies as restructure 3
companies in any of the following ways: 4
(a) the formation or acquisition by or on behalf of the State or a SOC 5
of a company limited by shares, so that all the issued shares in the 6
company are held by or on behalf of the State or a SOC (or both), 7
(b) the formation or acquisition of a company as a wholly owned 8
subsidiary company of a restructure company, 9
(c) the conversion of a State electricity corporation or restructure 10
SOC into a company limited by shares as provided by 11
Schedule 3. 12
(2) A restructure company that is a public sector agency may be converted 13
from one kind of company to any other kind of company. 14
(3) Except by express agreement with the Treasurer: 15
(a) a restructure company is not and does not represent the State, and 16
(b) the debts, liabilities and obligations of a restructure company are 17
not guaranteed by the State. 18
(4) The Treasurer may act for or on behalf of the State, a SOC or a 19
restructure company that is a public sector agency in connection with 20
the rights, privileges and benefits, and the duties, liabilities and 21
obligations of the State, a SOC or restructure company as the holder of 22
shares or other securities in a restructure company. 23
(5) Shares and other securities in a restructure company that is a public 24
sector agency may be issued, sold or transferred in accordance with the 25
directions of the Treasurer. The Treasurer may on behalf of the State, a 26
SOC or a restructure company that is a public sector agency enter into 27
and carry out restructure arrangements for the issue, sale or transfer of 28
shares and other securities in a restructure company. 29
(6) An electricity distributor or electricity generator that becomes a 30
restructure company remains an electricity distributor or electricity 31
generator, as appropriate, for the purposes of this Act (despite ceasing 32
to be a statutory State owned corporation constituted by the Energy 33
Services Corporations Act 1995). 34
11 Functions of State electricity corporations and restructure entities 35
(1) Each State electricity corporation and restructure entity has and may 36
exercise all such functions as are necessary or convenient for the 37
purposes of the authorised restructuring. 38
Page 6
Electricity Industry Restructuring Bill 2008 Clause 12
Facilitating the authorised restructuring Part 3
(2) The functions conferred by this section are in addition to any other 1
functions that a State electricity corporation or restructure entity has 2
apart from this section and those other functions do not prevent or 3
otherwise limit the exercise of the additional functions conferred by this 4
section. 5
(3) The Treasurer may act for and on behalf of and in the name of a State 6
electricity corporation or restructure entity in the exercise of any of its 7
functions for the purposes of the authorised restructuring while it is a 8
public sector agency. 9
12 Direction and control of State electricity corporations and restructure 10
entities 11
(1) Each State electricity corporation and restructure entity is subject to the 12
direction and control of the Treasurer in the exercise of any of its 13
functions for the purposes of the authorised restructuring while it is a 14
public sector agency. 15
(2) The Treasurer may give directions to a State electricity corporation or 16
restructure entity that is a public sector agency (and its directors or other 17
officers) for the purposes of the authorised restructuring. A State 18
electricity corporation or restructure entity (and its directors and other 19
officers) must comply with any such directions while it is a public sector 20
agency. 21
(3) The power to give directions under this section extends to directions 22
with respect to the way in which a State electricity corporation or 23
restructure entity is to conduct its business and other affairs. 24
(4) Action taken by a State electricity corporation or restructure SOC to 25
comply with a direction of the Treasurer under this Act does not require 26
the approval of the voting shareholders or portfolio Minister of the 27
corporation. 28
(5) Anything done or omitted to be done by a director or other officer of a 29
State electricity corporation or restructure entity in complying with a 30
direction given by the Treasurer under this Act does not subject the 31
director or officer personally to any action, liability, claim or demand. 32
13 Establishment of Electricity Assets Ministerial Holding Corporation 33
(1) There is constituted by this Act a corporation with the corporate name 34
of the Electricity Assets Ministerial Holding Corporation. 35
(2) The affairs of the Corporation are to be managed by the Treasurer who 36
may authorise another Minister to exercise functions in relation to 37
particular assets, rights and liabilities. 38
Page 7
Clause 14 Electricity Industry Restructuring Bill 2008
Part 3 Facilitating the authorised restructuring
(3) Any act, matter or thing done in the name of, or on behalf of, the 1
Corporation by the Treasurer or a Minister authorised by the Treasurer, 2
or with the authority of the Treasurer or any such Minister, is taken to 3
have been done by the Corporation. 4
(4) The Corporation has the functions conferred or imposed on it by or 5
under this or any other Act. 6
(5) The functions of the Corporation are: 7
(a) to hold, on behalf of the Crown, State electricity assets acquired 8
by it or transferred to it by or under this or any other Act, and 9
(b) to carry on any activities or business that relate to any State 10
electricity assets held by it, including demanding, collecting and 11
receiving charges, levies, rates and fees, and 12
(c) such other functions for the purposes of the authorised 13
restructuring as may be prescribed by the regulations. 14
Division 2 Arrangements for transfer of assets, staff and 15
functions 16
14 Vesting orders 17
The Treasurer may make vesting orders under Schedule 4 for the 18
purposes of the authorised restructuring. 19
15 Transfer of electricity employees 20
Schedule 5 has effect for the purposes of the authorised restructuring. 21
16 Effect of transfer of electricity assets between public sector agencies 22
(1) When the business of an electricity generator or electricity distributor is 23
transferred to another public sector agency for the purposes of the 24
authorised restructuring: 25
(a) the public sector agency becomes the new operator of the 26
business and that business is to be conducted as the electricity 27
business of the new operator, and 28
(b) the new operator is deemed to be an electricity generator or 29
electricity distributor (as appropriate) for the purposes of this Act 30
in respect of the business that comprises its electricity business as 31
conducted by the new operator from time to time, but only while 32
the new operator is a public sector agency and not in respect of 33
any other business of the new operator, and 34
(c) the new operator has and may exercise all such functions as may 35
be necessary or convenient for the purpose of the carrying on of 36
its electricity business, and 37
Page 8
Electricity Industry Restructuring Bill 2008 Clause 17
Facilitating the authorised restructuring Part 3
(d) the new operator has the benefit of any relevant operating licence 1
for the purpose of the carrying on of its electricity business, and 2
(e) a public sector agency responsible for the issue of any such 3
relevant operating licence must, at the request of the new 4
operator, re-issue the licence in the name of the new operator and 5
subject to terms, conditions and endorsements that are the same 6
(or to substantially the same effect) as those to which it was 7
subject before its re-issue. 8
(2) If the business comprising the electricity business of the new operator 9
is transferred to another public sector agency, this section also operates 10
in respect of that transfer (and any further transfer for the purposes of 11
the authorised restructuring). 12
(3) If the businesses of an electricity generator and an electricity distributor 13
are transferred to a public sector agency, this section operates to deem 14
the new operator to be both an electricity generator in respect of the 15
transferred business of the electricity generator and an electricity 16
distributor in respect of the transferred business of the electricity 17
distributor. 18
(4) This section applies to the transfer of part of, or an interest in, a business 19
in the same way as it applies to a transfer of the whole business. 20
(5) In this section: 21
relevant operating licence, in relation to a transferred business of an 22
electricity generator or electricity distributor, means any licence, 23
permit, entitlement, accreditation or other authority that was held by the 24
electricity generator or electricity distributor before the transfer and that 25
is necessary or convenient for the carrying on of any aspect of the 26
electricity business of the new operator. 27
17 Grant of relevant authorisations 28
(1) The Treasurer may give directions to a public sector agency for or with 29
respect to the grant of any relevant authorisation to a person who 30
becomes or who it is proposed will become the new operator of any 31
State electricity assets pursuant to the authorised restructuring, 32
including directions for or with respect to any of the following: 33
(a) requiring the grant of any such relevant authorisation without the 34
necessity for the making or determination of any application, 35
(b) the displacement or modification of any provision of a relevant 36
law in its application to the grant of any such relevant 37
authorisation, 38
(c) the conditions or endorsements subject to which any such 39
relevant authorisation is to be granted or that are to be attached to 40
any such relevant authorisation. 41
Page 9
Clause 17 Electricity Industry Restructuring Bill 2008
Part 3 Facilitating the authorised restructuring
(2) A direction may only be given under this section for the grant of a 1
relevant authorisation that: 2
(a) operates to transfer or replace an existing relevant authorisation 3
that is currently in force, and 4
(b) is subject to terms, conditions or endorsements that are the same 5
(or to substantially the same effect) as those to which that existing 6
relevant authorisation is subject. 7
(3) The Treasurer must consult with a public sector agency before giving a 8
direction to the public sector agency under this section. 9
(4) A public sector agency exercising functions under a relevant law must 10
comply with a direction of the Treasurer under this section. 11
(5) Anything done by a State electricity corporation in compliance with a 12
condition or endorsement of a relevant authorisation in relation to State 13
electricity assets of which a person is the new operator is taken to have 14
been done by the new operator for the purposes of any corresponding 15
condition or endorsement of a relevant authorisation granted to the new 16
operator pursuant to a direction under this section. 17
(6) A relevant authorisation granted to a State electricity corporation or to 18
the new operator of State electricity assets may not be suspended or 19
cancelled on the ground of the conversion of the State electricity 20
corporation or new operator to a company or on the ground of any 21
change that has occurred in the officers or shareholders of the company 22
as a result of that conversion or pursuant to a restructure arrangement. 23
(7) In this section: 24
grant includes issue and transfer. 25
new operator of State electricity assets means: 26
(a) a public sector agency to which any State electricity assets are 27
transferred for the purposes of the authorised restructuring, or 28
(b) a person (or the nominee of a person) in whom State electricity 29
assets are vested, or to whom State electricity assets are 30
transferred, pursuant to the authorised restructuring. 31
relevant authorisation means a licence, permit, consent, entitlement, 32
accreditation or other authorisation under a relevant law. 33
relevant law means any of the following Acts and any regulations or 34
instruments under those Acts: 35
Electricity Supply Act 1995 36
Energy Services Corporations Act 1995 37
Gas Supply Act 1996 38
Protection of the Environment Operations Act 1997 39
Page 10
Electricity Industry Restructuring Bill 2008 Clause 18
Facilitating the authorised restructuring Part 3
Water Act 1912 1
Water Management Act 2000 2
18 Acquisition of land by Electricity Assets Ministerial Holding Corporation 3
(1) The Electricity Assets Ministerial Holding Corporation may, for the 4
purposes of the authorised restructuring, acquire land (including an 5
interest in land) by agreement or by compulsory process in accordance 6
with the Land Acquisition (Just Terms Compensation) Act 1991 that the 7
Corporation determines to be: 8
(a) land on which State electricity assets of an electricity generator 9
were situated on the date of assent to this Act and continue to be 10
situated, or 11
(b) land that on the date of assent to this Act was used or occupied by 12
an electricity generator for or in connection with the exercise of 13
any function of the electricity generator and that continues to be 14
so used or occupied. 15
(2) In the case of land used (but not occupied) by an electricity generator 16
for or in connection with the exercise of any function of the electricity 17
generator, such as land used for the purposes of access, the power 18
conferred by this section to acquire the land is limited to a power to 19
acquire an interest in the land sufficient to allow that use of the land to 20
continue. 21
(3) A public sector agency is not entitled to compensation under the Land 22
Acquisition (Just Terms Compensation) Act 1991 as the owner of land 23
acquired pursuant to this section. 24
(4) Land acquired by the Corporation pursuant to this section is deemed to 25
be an asset of an electricity generator for the purposes of this Act and 26
the Corporation is deemed to be an electricity generator for the purposes 27
of this Act while it holds the land. 28
Note. Land acquired pursuant to this section is a State electricity asset for the 29
purposes of the authorised restructuring (whether or not it was a State electricity 30
asset before it was acquired). 31
Division 3 Operation of other laws 32
19 State taxes 33
(1) In this section: 34
relevant matter means any of the following: 35
(a) the transfer of State electricity assets for the purposes of the 36
authorised restructuring, 37
(b) a vesting of assets, rights or liabilities by operation of Schedule 4 38
(Vesting of assets, rights and liabilities) and anything certified by 39
Page 11
Clause 20 Electricity Industry Restructuring Bill 2008
Part 3 Facilitating the authorised restructuring
the Treasurer as having been done in consequence of such a 1
vesting (for example, the transfer or registration of an interest in 2
land), 3
(c) the issue, disposal or purchase of shares or other securities in a 4
company for the purposes of the authorised restructuring, 5
(d) any matter connected with the corporate conversion of a State 6
electricity corporation or restructure SOC for the purposes of the 7
authorised restructuring, 8
(e) such other matters for the purposes of the authorised restructuring 9
as may be prescribed by the regulations. 10
State tax means application or registration fees, duty under the Duties 11
Act 1997 or any other tax, duty, fee or charge imposed by any Act or law 12
of the State. 13
(2) State tax is not payable by a public sector agency in relation to a relevant 14
matter. 15
(3) State tax is not payable by a person or body (other than a public sector 16
agency) in relation to a relevant matter to such extent (if any) as the 17
Treasurer may direct by order in writing, either generally or in a 18
particular case. 19
(4) An order may be made by the Treasurer under this section before or 20
after the liability to pay the State tax concerned accrues. 21
(5) The Treasurer must give a copy of an order under this section to the 22
Chief Commissioner of State Revenue. 23
20 Release of information by Auditor-General 24
Section 38 (Secrecy) of the Public Finance and Audit Act 1983 does not 25
apply to or in respect of a report or communication that the Treasurer 26
authorises the Auditor-General to make to a person for the purposes of 27
the authorised restructuring. 28
21 Contracts for sale of land 29
Section 52A (Contracts for sale of land) of the Conveyancing Act 1919 30
does not apply to a contract for the sale of land that is entered into for 31
the purposes of the authorised restructuring. 32
22 Management of electricity trading risks--Trade Practices exemption 33
(1) The following are specifically authorised by this Act for the purposes of 34
the Trade Practices Act 1974 of the Commonwealth and the 35
Competition Code of New South Wales: 36
(a) any agreement (including any electricity derivative agreement) 37
entered into by a State electricity corporation or restructure entity 38
Page 12
Electricity Industry Restructuring Bill 2008 Clause 23
Facilitating the authorised restructuring Part 3
in connection with the management of electricity trading risks 1
and certified by the Treasurer for the purposes of this section to 2
be an agreement entered into with the approval of or at the 3
direction of the Treasurer, 4
(b) the conduct of the parties in negotiating and entering into any 5
such agreement, 6
(c) the conduct of the parties (and of the successors, substitutes or 7
assigns of the parties) in performing any such agreement. 8
(2) Anything authorised to be done by this section is authorised only to the 9
extent (if any) that it would otherwise contravene Part IV of the Trade 10
Practices Act 1974 of the Commonwealth or the Competition Code of 11
New South Wales. 12
23 Transfer by IPO--ownership restrictions 13
(1) If State electricity assets are transferred for the purposes of the 14
authorised restructuring by means of an initial public offer of shares in 15
a restructure company, Schedule 6 applies to impose ownership 16
restrictions in relation to the company. 17
(2) For the purposes of Schedule 6, the maximum ownership level is set at 18
10 percent or such greater percentage as may be fixed by the Treasurer 19
under this section. 20
(3) Schedule 6 ceases to apply in relation to a restructure company at the 21
end of the period of 3 years (or such longer period as the Treasurer may 22
fix under this section as the period for which that Schedule is to apply 23
to the company) beginning on the day on which the company is first 24
listed on a stock exchange that is a prescribed financial market under the 25
Corporations Act. 26
(4) The Treasurer may, by order published in the Gazette, do either or both 27
of the following: 28
(a) fix a percentage of up to 15 percent as the maximum ownership 29
level in a company for the purposes of Schedule 6, 30
(b) fix a period of up to 5 years as the period for which Schedule 6 is 31
to apply to a company. 32
(5) The Treasurer may not make an order under this section in respect of a 33
company after the commencement of the period during which an offer 34
of shares in the company (for the purposes of the initial public offer 35
concerned) can be accepted. 36
Page 13
Clause 24 Electricity Industry Restructuring Bill 2008
Part 4 Miscellaneous
Part 4 Miscellaneous 1
24 Delegation 2
The Treasurer may delegate to the Secretary of the Treasury, or to any 3
other officer of the Government Service prescribed by the regulations, 4
any function of the Treasurer under this Act except this power of 5
delegation. 6
25 Act to bind State and other jurisdictions 7
(1) This Act binds the State and, in so far as the legislative power of the 8
Parliament of New South Wales permits, the other States, the Territories 9
and the Commonwealth. 10
(2) Without limiting subsection (1), this Act has effect despite any privilege 11
or immunity of the Crown in any of its capacities. 12
(3) This Act does not make any State or Territory, the Commonwealth, or 13
the Crown in any of its capacities, liable to be prosecuted for an offence. 14
(4) A reference in this section to a State, Territory or the Commonwealth 15
includes a reference to the Government of the State, Territory or 16
Commonwealth. 17
26 General relationship of Act with other State legislation 18
(1) None of the following provisions operate to prevent, restrict or 19
otherwise limit the carrying out of the authorised restructuring or the 20
exercise of a function for the purposes of the authorised restructuring: 21
(a) any provision of the State Owned Corporations Act 1989, 22
(b) any provision of the constitution of a statutory SOC or a 23
subsidiary of a statutory SOC, 24
(c) section 11 (Prohibition on privatisation of energy services 25
corporations) of the Energy Services Corporations Act 1995. 26
(2) In the event of any inconsistency between the provisions of this Act or 27
the regulations and a provision of any other State legislation that is 28
prescribed by the regulations as an inconsistent provision for the 29
purposes of this section, the provisions of this Act or the regulations (as 30
the case may be) prevail to the extent of the inconsistency. 31
(3) The requirements of any other Act (whether enacted before or after this 32
Act) for the approval by resolution of either or both Houses of 33
Parliament (or by Act) of any act that constitutes the transfer of State 34
electricity assets for the purposes of the authorised restructuring is 35
satisfied by the enactment of this Act. 36
Page 14
Electricity Industry Restructuring Bill 2008 Clause 27
Miscellaneous Part 4
27 Extraterritorial operation of Act 1
(1) It is the intention of the Parliament of New South Wales that the 2
operation of this Act should, as far as possible, include operation in 3
relation to the following: 4
(a) things situated in or outside the territorial limits of the State, 5
(b) acts, transactions and matters done, entered into or occurring in 6
or outside the territorial limits of the State, 7
(c) things, acts, transactions and matters (wherever situated, done, 8
entered into or occurring) that would, apart from this Act, be 9
governed or otherwise affected by the law of another State, a 10
Territory, the Commonwealth or a foreign country. 11
(2) Without limiting subsection (1), it is the intention of the Parliament of 12
New South Wales that the provisions of this Act have an operation in 13
relation to the things, acts, transactions and matters referred to in that 14
subsection even if the rules of private international law (whether at 15
general law or as provided by legislation) would require the application 16
of a law other than this Act instead of the provisions of this Act. 17
28 Construction of this Act and instruments so as not to exceed legislative 18
power 19
(1) Unless a contrary intention appears, if a provision of this Act or an 20
instrument made under this Act: 21
(a) would, apart from this section, have an invalid application, but 22
(b) also has at least one valid application, 23
it is the intention of the Parliament of New South Wales that the 24
provision is not to have the invalid application, but is to have every valid 25
application. 26
(2) Despite subsection (1), the provision is not to have a particular valid 27
application if: 28
(a) apart from this section, it is clear, taking into account the 29
provision's context and the purposes or objects underlying this 30
Act, that the provision was intended to have that valid application 31
only if every invalid application, or a particular invalid 32
application, of the provision had also been within the legislative 33
power of the Parliament of New South Wales, or 34
(b) the provision's operation in relation to that valid application 35
would be different in a substantial respect from what would have 36
been its operation in relation to that valid application if every 37
invalid application, or a particular invalid application, of the 38
provision had been within the legislative power of the Parliament 39
of New South Wales. 40
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Clause 29 Electricity Industry Restructuring Bill 2008
Part 4 Miscellaneous
(3) Subsection (2) does not limit the cases in which a contrary intention 1
may be taken to appear for the purposes of subsection (1). 2
(4) This section is in addition to, and not in derogation of, section 31 of the 3
Interpretation Act 1987. 4
(5) In this section: 5
application means an application in relation to: 6
(a) one or more particular persons, things, matters, places, 7
circumstances or cases, or 8
(b) one or more classes (however defined or determined) of persons, 9
things, matters, places, circumstances or cases. 10
invalid application, in relation to a provision, means an application 11
because of which the provision exceeds the legislative power of the 12
Parliament of New South Wales. 13
valid application, in relation to a provision, means an application 14
which, if it were the provision's only application, would be within the 15
legislative power of the Parliament of New South Wales. 16
29 Displacement and exclusion of Corporations legislation 17
(1) Corporations displacement provisions 18
The following provisions of this Act are declared to be Corporations 19
legislation displacement provisions for the purposes of section 5G of the 20
Corporations Act: 21
(a) section 12 (Direction and control of State electricity corporations 22
and restructure entities) in relation to the provisions of the 23
Corporations legislation generally, 24
(b) section 23 (Transfer by IPO--ownership restrictions) and 25
Schedule 6 (and section 35 in its application to contraventions of 26
those provisions by corporations) in relation to the provisions of 27
the Corporations legislation generally, 28
(c) section 31 (Leases of State electricity assets) in relation to section 29
553C, Division 7A of Part 5.6 and Division 2 of Part 5.7B of the 30
Corporations Act. 31
Note. Section 5G of the Corporations Act enables a State to displace the 32
operation of provisions of the Corporations legislation in favour of provisions of 33
State laws that are declared under State law to be Corporations legislation 34
displacement provisions for the purposes of that section. See, in particular, 35
section 5G (4), (5), (7), (8) and (11) of the Corporations Act in relation to the 36
displacement effected by this subsection. 37
(2) Declarations under section 5F of Corporations Act 38
The regulations may declare any matter referred to in, or arising under 39
or in connection with, this Act or the regulations to be an excluded 40
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Electricity Industry Restructuring Bill 2008 Clause 30
Miscellaneous Part 4
matter for the purposes of section 5F of the Corporations Act in relation 1
to: 2
(a) the whole of the Corporations legislation, or 3
(b) a specified provision of that legislation, or 4
(c) that legislation other than a specified provision, or 5
(d) that legislation otherwise than to a specified extent. 6
Note. Section 5F of the Corporations Act provides that if a State law declares a 7
matter to be an excluded matter for the purposes of that section in relation to all 8
or part of the Corporations legislation, the provisions that are the subject of the 9
declaration will not apply in relation to that matter in the State concerned. 10
(3) Further declarations under section 5G of Corporations Act 11
The regulations may declare any provision of this Act (other than a 12
provision referred to in subsection (1)) to be a Corporations legislation 13
displacement provision for the purposes of section 5G of the 14
Corporations Act (either generally or specifically in relation to a 15
provision of the Corporations legislation). 16
(4) Definition 17
In this section: 18
matter includes act, omission, body, person or thing. 19
30 Protection of contractual and other obligations 20
(1) This section applies to the following: 21
(a) the operation of this Act (including any order under this Act and 22
anything done or omitted to be done under or for the purposes of 23
this Act), 24
(b) the transfer of State electricity assets for the purposes of the 25
authorised restructuring, 26
(c) the entering into or performance of obligations under a 27
restructure arrangement by a public sector agency, 28
(d) a disclosure of information by, on behalf of or with the consent 29
of a public sector agency for the purposes of the authorised 30
restructuring. 31
(2) None of the matters or things to which this section applies are to be 32
regarded as: 33
(a) a breach of contract or confidence or otherwise as a civil wrong, 34
or 35
(b) a breach of any instrument (including, without limitation, any 36
provision prohibiting, restricting or regulating the assignment or 37
Page 17
Clause 31 Electricity Industry Restructuring Bill 2008
Part 4 Miscellaneous
transfer of assets, rights or liabilities) or as requiring any act to be 1
done under an instrument, or 2
(c) giving rise to any right or remedy by a party to a contract or other 3
instrument, or as causing or permitting the termination of, or 4
exercise of rights under, any contract or other instrument, or 5
(d) an event of default under any contract or other instrument, or 6
(e) giving rise to a breach of or an offence against a provision of an 7
Act that prohibits or restricts the disclosure of information, or 8
(f) releasing a surety or other obligee wholly or in part from an 9
obligation. 10
(3) Subsection (2) does not affect the rights and obligations of the parties to 11
a restructure arrangement in respect of the performance of obligations 12
under the restructure arrangement. 13
(4) In this section: 14
instrument means an instrument (other than an instrument made under 15
this Act) or any other document that creates, modifies or extinguishes 16
rights or liabilities (or would do so if lodged, filed or registered in 17
accordance with any law), and includes any judgment, order, process or 18
other instrument issued by a court or tribunal. 19
31 Leases of State electricity assets 20
(1) The provisions of a lease of State electricity assets by a public sector 21
agency entered into for the purposes of the authorised restructuring (or 22
of any agreement or arrangement entered into in connection with such 23
a lease) dealing with the following matters have effect according to their 24
terms despite any law or rule to the contrary: 25
(a) the payment of any amount by way of premium under the lease 26
and the retention of any such amount by the lessor, 27
(b) the circumstances or conditions under which the lease may be 28
terminated by the lessor or lessee, 29
(c) the application of a security provided in relation to the lease, 30
(d) the payment of a sum that is in the nature of a penalty, 31
(e) the forfeiture of property on the occurrence of a specified event 32
or other thing, 33
(f) the pre-payment of amounts payable by way of rent under the 34
lease and the retention of any such amounts by the lessor, 35
(g) the continuance of the lease despite the occurrence of unintended 36
or unforeseen circumstances, 37
(h) the continuance of the obligation to pay rent despite the 38
occurrence of unintended or unforeseen circumstances, 39
Page 18
Electricity Industry Restructuring Bill 2008 Clause 32
Miscellaneous Part 4
(i) the amount payable in consequence of a breach or early 1
termination of the lease, 2
(j) the liability of the lessor or lessee in relation to the leased assets, 3
(k) the non-refundability of any payment made on account of rent, 4
premium, option fee, outgoings, security deposit or otherwise, 5
(l) the operation of any set-off. 6
(2) The lease of a power station for the purposes of the authorised 7
restructuring may include provision for the removal by the lessee of any 8
fixture severable from the land of the power station. 9
(3) A scheme of arrangement, receivership, winding up or other external 10
administration of a company is to be carried out in a manner that gives 11
effect to the provisions of a lease referred to in subsection (1). 12
32 Compensation not payable 13
(1) Compensation is not payable by or on behalf of the State: 14
(a) because of the enactment or operation of this Act, or for any 15
consequence of that enactment or operation, or 16
(b) because of any statement or conduct relating to the enactment of 17
this Act. 18
(2) This section does not extend to compensation payable under a 19
restructure arrangement to a party to the restructure arrangement in 20
connection with the performance of obligations under the restructure 21
arrangement. 22
(3) In this section: 23
compensation includes damages or any other form of monetary 24
compensation. 25
conduct includes any act or omission, whether unconscionable, 26
misleading, deceptive or otherwise. 27
operation of this Act includes the operation of any notice or order under 28
this Act and any agreement entered into under or for the purposes of this 29
Act. 30
statement includes a representation of any kind: 31
(a) whether made verbally or in writing, and 32
(b) whether negligent, false, misleading or otherwise. 33
the State means the Crown within the meaning of the Crown 34
Proceedings Act 1988, and includes a public sector agency and an 35
officer, employee or agent of the Crown or a public sector agency. 36
Page 19
Clause 33 Electricity Industry Restructuring Bill 2008
Part 4 Miscellaneous
33 Certificate evidence 1
A certificate purporting to be signed by the Treasurer or an officer 2
prescribed by the regulations certifying that an order specified or 3
referred to in the certificate is an order made by the Treasurer under a 4
specified provision of this Act is admissible in evidence in any legal 5
proceedings and is evidence of the matters certified. 6
34 Service or giving of documents 7
(1) A document that is authorised or required by this Act or the regulations 8
to be served on or given to any person may be served or given: 9
(a) in the case of a natural person: 10
(i) by delivering it to the person personally, or 11
(ii) by sending it by post to the address specified by the person 12
for the giving or service of documents or, if no such 13
address is specified, the residential or business address of 14
the person last known to the person giving or serving the 15
document, or 16
(iii) by sending it by facsimile transmission to the facsimile 17
number of the person, or 18
(b) in the case of a body corporate: 19
(i) by leaving it with a person apparently of or above the age 20
of 16 years at, or by sending it by post to, the head office, 21
a registered office or a principal office of the body 22
corporate or to an address specified by the body corporate 23
for the giving or service of documents, or 24
(ii) by sending it by facsimile transmission to the facsimile 25
number of the body corporate. 26
(2) Nothing in this section affects the operation of any provision of a law or 27
of the rules of a court authorising a document to be served on a person 28
in any other manner. 29
35 Offences by corporations 30
(1) If a corporation contravenes, whether by act or omission, any provision 31
of this Act or the regulations, each person who is a director of the 32
corporation or who is concerned in the management of the corporation 33
is taken to have contravened the same provision if the person knowingly 34
authorised or permitted the contravention. 35
(2) A person may be proceeded against and convicted under a provision 36
pursuant to subsection (1) whether or not the corporation has been 37
proceeded against or has been convicted under the provision. 38
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Electricity Industry Restructuring Bill 2008 Clause 36
Miscellaneous Part 4
(3) Nothing in this section affects any liability imposed on a corporation for 1
an offence committed by the corporation under this Act or the 2
regulations. 3
36 Proceedings for offences 4
(1) Proceedings for an offence under this Act may be dealt with summarily 5
before a Local Court or before the Supreme Court in its summary 6
jurisdiction. 7
(2) If proceedings for an offence to which this section applies are brought 8
in a Local Court, the maximum penalty that the Court may impose in 9
respect of the offence is, despite any other provision of this Act, 10
$25,000 or the maximum penalty provided by this Act, whichever is the 11
lesser. 12
(3) If proceedings for an offence to which this section applies are brought 13
in the Supreme Court in its summary jurisdiction, the Supreme Court 14
may impose a penalty not exceeding the maximum penalty provided by 15
this Act in respect of the offence. 16
37 Regulations 17
The Governor may make regulations, not inconsistent with this Act, for 18
or with respect to any matter that by this Act is required or permitted to 19
be prescribed or that is necessary or convenient to be prescribed for 20
carrying out or giving effect to this Act. 21
38 Savings, transitional and other provisions 22
Schedule 7 has effect. 23
39 Amendment of Acts and Regulations 24
The Acts and Regulations specified in Schedule 8 are amended as set 25
out in that Schedule. 26
Page 21
Electricity Industry Restructuring Bill 2008
Schedule 1 Interpretative provisions
Schedule 1 Interpretative provisions 1
(Section 3) 2
1 Definitions 3
In this Act: 4
assets means any legal or equitable estate or interest (whether present or 5
future, whether vested or contingent and whether personal or 6
assignable) in real or personal property of any description (including 7
money), and includes securities, choses in action and documents. 8
authorised restructuring--see section 3. 9
business of a body means all of the assets, rights and liabilities of the 10
body. 11
corporate conversion, in relation to a State electricity corporation or 12
restructure SOC, means the registration of the corporation as a company 13
under the Corporations Act. 14
Corporations Act means the Corporations Act 2001 of the 15
Commonwealth. 16
Corporations legislation means the Corporations legislation to which 17
Part 1.1A of the Corporations Act applies. 18
distribution and transmission assets--see section 3. 19
Electricity Assets Ministerial Holding Corporation or the Corporation 20
means the Electricity Assets Ministerial Holding Corporation 21
constituted by this Act. 22
electricity distributor--see section 3. 23
electricity generator--see section 3. 24
exercise a function includes perform a duty. 25
function includes a power, authority or duty. 26
general law means the common law and equity (as modified from time 27
to time by legislation). 28
initial public offer means the offer to the public of securities quoted or 29
to be quoted on a stock exchange that is a prescribed financial market 30
under the Corporations Act. 31
lease includes sublease. 32
legislation includes: 33
(a) any statute of a legislature (whether enacted or made in Australia 34
or elsewhere), and 35
(b) any proclamation, regulation, rule, by-law, order or any other 36
kind of subordinate legislation (however described) made under 37
the authority of a statute (whether enacted or made in Australia 38
or elsewhere). 39
Page 22
Electricity Industry Restructuring Bill 2008
Interpretative provisions Schedule 1
liabilities means any liabilities, debts or obligations (whether present or 1
future, whether vested or contingent and whether personal or 2
assignable). 3
modification includes addition, exception, omission or substitution. 4
power station means electricity generating plant and the land on which 5
that plant is situated. A power station of an electricity generator is a 6
power station that is owned, controlled or operated by the electricity 7
generator. 8
private sector means any person other than a public sector agency. 9
Note. A person who is a public sector agency of another jurisdiction is a private 10
sector person for the purposes of this Act. 11
public sector agency means any of the following: 12
(a) the State (including the Crown in right of the State), 13
(b) a Minister, 14
(c) the Ministerial Holding Corporation constituted by the State 15
Owned Corporations Act 1989, 16
(d) the Electricity Assets Ministerial Holding Corporation, 17
(e) a SOC, 18
(f) a public authority of the State, 19
(g) any other person acting on behalf of the State (or the Crown in 20
right of the State), 21
(h) a restructure company, but only while all the shares in the 22
restructure company are held by or on behalf of the State or a 23
SOC or the restructure company is the subsidiary of another 24
restructure company all the shares in which are held by or on 25
behalf of the State or a SOC. 26
restructure arrangement means a transaction, agreement or other 27
arrangement entered into by a public sector agency for the purposes of 28
the authorised restructuring. 29
restructure company means a company established as a restructure 30
company pursuant to this Act. 31
restructure entity means a restructure SOC or a restructure company. 32
restructure SOC means a SOC established as a restructure SOC 33
pursuant to this Act. 34
rights means any rights, powers, privileges or immunities (whether 35
present or future, whether vested or contingent and whether personal or 36
assignable). 37
SOC means a State owned corporation within the meaning of the State 38
Owned Corporations Act 1989. 39
State electricity assets--see section 3. 40
Page 23
Electricity Industry Restructuring Bill 2008
Schedule 1 Interpretative provisions
State electricity corporation--see section 3. 1
State legislation means any legislation of the State. 2
the State means the State of New South Wales. 3
transfer of State electricity assets includes the sale or lease of State 4
electricity assets. 5
2 Functions for the purposes of the authorised restructuring 6
For the purposes of this Act, any act, matter or thing is done or has effect 7
for the purposes of the authorised restructuring if it is done or has effect 8
for the purpose of effecting or facilitating the authorised restructuring 9
or is done or has effect for any purpose that is ancillary or incidental to 10
or consequential on the authorised restructuring. 11
3 Transfer of State electricity assets--interpretation 12
(1) A transfer of State electricity assets to the private sector for the purposes 13
of the authorised restructuring may be effected by any means, 14
including: 15
(a) direct sale or lease to the private sector, 16
(b) sale to the private sector of a sale or lease entity, 17
(c) any other transaction whereby any one or more persons in the 18
private sector become an owner or lessee of State electricity 19
assets, 20
(d) a partial sale or lease to the private sector (which is a sale or lease 21
whereby one or more public sector agencies obtain or retain any 22
interest in a sale or lease entity). 23
Note. This clause only applies to a transfer that is for the purposes of the 24
authorised restructuring (under section 4) and does not extend the authorised 25
restructuring or authorise any transfer that is outside the authorised 26
restructuring. 27
(2) For the purposes of this Act, the transfer of State electricity assets by 28
initial public offer is a transfer effected by means of an initial public 29
offer of securities in a sale or lease entity, including such a transfer that 30
results in a public sector agency obtaining or retaining any interest in the 31
sale or lease entity. 32
(3) If State electricity assets are transferred to the private sector for the 33
purposes of the authorised restructuring by means of a partial sale or 34
lease, this Act also authorises the subsequent transfer to the private 35
sector by a public sector agency of any retained interest in the sale or 36
lease entity concerned. Any such subsequent transfer is taken to be for 37
the purposes of the authorised restructuring. 38
Note. Subclause (3) makes it clear that when a transfer of assets to the private 39
sector is carried out initially as a partial transfer any interest that the State 40
Page 24
Electricity Industry Restructuring Bill 2008
Interpretative provisions Schedule 1
retains can be transferred subsequently to complete the full transfer to the 1
private sector. 2
(4) In this clause: 3
entity includes a restructure entity. 4
sale of an entity includes a sale of securities in the entity (including by 5
means of an initial public offer of securities in the entity). 6
sale or lease entity means: 7
(a) an entity that holds State electricity assets (in the case of sale) or 8
that is an entity to which State electricity assets have been leased 9
(in the case of lease), or 10
(b) an entity that is the holding company of an entity referred to in 11
paragraph (a), or 12
(c) an entity that has control (within the meaning of the Corporations 13
Act) of an entity referred to in paragraph (a), or 14
(d) any other entity the sale of which to the private sector results in 15
State electricity assets being vested in or leased to the private 16
sector. 17
4 State electricity assets not limited by electricity functions 18
The operation of this Act is not limited to State electricity assets that 19
relate to electricity. 20
Note. The functions of a State electricity corporation are not limited to electricity 21
and extend to other forms of energy. State electricity assets can relate to other 22
forms of energy also. 23
5 Words and expressions defined in Corporations Act 24
Words and expressions used in this Act that are defined in section 9 of 25
the Corporations Act have the same meanings as in that section, except 26
in so far as they are defined differently in this Act or the context or 27
subject-matter otherwise indicates or requires. 28
6 When events occur 29
If this Act provides for an event or other thing to occur on a particular 30
day, that event or thing is taken to occur at the beginning of that day. 31
7 Notes 32
Notes included in this Act do not form part of this Act. 33
Page 25
Electricity Industry Restructuring Bill 2008
Schedule 2 Provisions concerning restructure SOCs
Schedule 2 Provisions concerning restructure SOCs 1
(Section 9) 2
1 Board of directors 3
(1) Each restructure SOC is to have a board of directors. 4
(2) The board is to consist of: 5
(a) the chief executive officer, and 6
(b) at least 3 and not more than 5 other directors appointed by the 7
voting shareholders. 8
(3) Of the directors appointed under subclause (2) (b), one is (in and by the 9
director's instrument of appointment as director or in and by another 10
instrument executed by the voting shareholders) to be appointed as 11
Chairperson of the Board. 12
(4) The board is accountable to the voting shareholders in the manner set 13
out in Part 4 of the State Owned Corporations Act 1989 and in the 14
constitution of the restructure SOC. 15
(5) The voting shareholders may remove a director, or the chairperson, 16
from office at any time for any or no reason and without notice and, in 17
that event, the office of the director or chairperson is taken to have 18
become vacant for the purposes of Schedule 8 to the State Owned 19
Corporations Act 1989. 20
(6) Except as provided by this clause, Schedule 8 to the State Owned 21
Corporations Act 1989 has effect with respect to the constitution and 22
procedure of the board. 23
(7) The provisions of section 20J of the State Owned Corporations Act 24
1989, and of clauses 2 (1) and (2), 4 and 7 (1) (d) and (2) of Schedule 8 25
to that Act, do not apply to a restructure SOC or to the chairperson. 26
(8) The provisions of clause 6 of Schedule 8 to the State Owned 27
Corporations Act 1989 do not apply to the chief executive officer, and 28
the chief executive officer is not entitled to remuneration under that 29
clause, in his or her capacity as a director. 30
2 Chief executive officer 31
(1) The chief executive officer of a restructure SOC is to be appointed by 32
the board after consultation with the voting shareholders. 33
(2) The board may remove a person from office as chief executive officer, 34
at any time, for any or no reason and without notice, but only after 35
consultation with the voting shareholders. 36
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Electricity Industry Restructuring Bill 2008
Provisions concerning restructure SOCs Schedule 2
(3) The chief executive officer is entitled to be paid such remuneration 1
(including travelling and subsistence allowances) as the board may 2
determine. 3
(4) The board may, after consultation with the voting shareholders, fix the 4
conditions of employment of the chief executive officer in so far as they 5
are not fixed by or under any other Act or law. 6
(5) The Public Sector Employment and Management Act 2002 (Chapter 5 7
included) does not apply to the chief executive officer. 8
(6) Subject to subclause (7), Schedule 9 to the State Owned Corporations 9
Act 1989 has effect with respect to the chief executive officer. 10
(7) The provisions of section 20K of the State Owned Corporations Act 11
1989, and of clauses 2, 3 and 6 of Schedule 9 to that Act, do not apply 12
to the chief executive officer. 13
3 Acting chief executive officer 14
(1) The board may, from time to time, appoint a person to act in the office 15
of chief executive officer during the illness or absence of the chief 16
executive officer. 17
(2) The board may remove a person from office as acting chief executive 18
officer, at any time, for any or no reason and without notice. 19
(3) A person, while acting in the office of chief executive officer: 20
(a) has all the functions of the chief executive officer and is taken to 21
be the chief executive officer, and 22
(b) is entitled to be paid such remuneration (including travelling and 23
subsistence allowances) as the board may determine. 24
(4) For the purposes of this clause, a vacancy in the office of a chief 25
executive officer is regarded as an absence from office. 26
(5) Clause 5 of Schedule 9 to the State Owned Corporations Act 1989 does 27
not apply to an acting chief executive officer of a restructure SOC. 28
4 Dividends 29
(1) The voting shareholders of a restructure SOC, in consultation with the 30
board, are to determine the corporation's share dividends scheme. 31
(2) The dividends to be paid by a restructure SOC are to be declared by the 32
board in accordance with the share dividends scheme so determined. 33
(3) The provisions of section 20S (1) of the State Owned Corporations Act 34
1989 do not apply to a restructure SOC. 35
Page 27
Electricity Industry Restructuring Bill 2008
Schedule 2 Provisions concerning restructure SOCs
5 Supply of information to portfolio Minister 1
The provisions of section 29 (2) of the State Owned Corporations Act 2
1989 do not apply to a restructure SOC. 3
Page 28
Electricity Industry Restructuring Bill 2008
Corporate conversion of State electricity corporations and restructure SOCs Schedule 3
Schedule 3 Corporate conversion of State electricity 1
corporations and restructure SOCs 2
(Section 10) 3
1 Direction for corporate conversion of State electricity corporation 4
(1) The Treasurer may direct by order in writing (a corporate conversion 5
direction) that a State electricity corporation or restructure SOC be 6
converted into a company limited by shares of a specified type. 7
(2) A State electricity corporation cannot be the subject of a corporate 8
conversion direction unless it is a State electricity corporation on the 9
date of assent to this Act or is a restructure SOC. 10
2 Application for conversion to company 11
(1) A State electricity corporation to which a corporate conversion 12
direction has been given is authorised to apply to be registered under 13
Part 5B.1 of the Corporations Act as a company limited by shares of the 14
type specified in the direction. 15
(2) That application can only be made if the Treasurer has issued a 16
certificate to the corporation that certifies that the Treasurer is satisfied 17
that the provisions of this Act have been complied with concerning the 18
transfer of its incorporation to the Corporations Act. 19
(3) A certificate issued by the Treasurer for the purposes of this clause: 20
(a) cannot be challenged, reviewed or called into question in 21
proceedings before any court or tribunal, and 22
(b) is conclusive evidence in any proceedings before a court or 23
tribunal that all the requirements of this Act have been complied 24
with concerning the transfer of the incorporation of the 25
corporation to the Corporations Act. 26
3 Effect of conversion 27
(1) The following provisions are taken to have had effect immediately 28
before a State electricity corporation to which a corporate conversion 29
direction has been given is registered as a company under the 30
Corporations Act: 31
(a) the corporation ceases to be a statutory State owned corporation 32
for the purposes of the State Owned Corporations Act 1989 or 33
any other State legislation, 34
(b) the corporation ceases to be an energy services corporation under 35
the Energy Services Corporations Act 1995 unless the 36
regulations provide otherwise, 37
Page 29
Electricity Industry Restructuring Bill 2008
Schedule 3 Corporate conversion of State electricity corporations and restructure SOCs
(c) the voting shareholders (within the meaning of the State Owned 1
Corporations Act 1989) of the corporation cease to be members 2
of the corporation, 3
(d) the board of directors of the corporation is dissolved and each 4
member (including any acting member) of the board ceases to 5
hold office as such, 6
(e) any person who holds a statutory office of the corporation ceases 7
to hold that office, subject to Schedule 5 (Transfer of electricity 8
employees), 9
(f) any person who ceases to be a member of the corporation or to 10
hold an office because of the operation of this subclause is not 11
entitled to any compensation for the loss of that membership or 12
office. 13
(2) Nothing in this clause prevents any person from becoming an officer of 14
the company into which the corporation is being converted in 15
accordance with its constitution and the provisions of the Corporations 16
Act. 17
(3) A State electricity corporation to which a corporate conversion 18
direction has been given becomes a restructure company for the 19
purposes of this Act only when it is registered as a company under the 20
Corporations Act. 21
Page 30
Electricity Industry Restructuring Bill 2008
Vesting of assets, rights and liabilities Schedule 4
Schedule 4 Vesting of assets, rights and liabilities 1
(Section 14) 2
1 Definitions 3
In this Schedule: 4
transferee means the person or body in whom any assets, rights or 5
liabilities are vested by a vesting order. 6
transferor means the person or body from whom any assets, rights or 7
liabilities are divested by a vesting order. 8
vesting order means a vesting order under this Schedule. 9
2 Making of vesting order 10
The Treasurer may, by order (a vesting order), vest assets, rights and 11
liabilities of a public sector agency that is a State electricity corporation 12
or restructure entity in a person specified in the order as the transferee. 13
3 Vesting of assets, rights and liabilities in transferee 14
(1) When any assets, rights or liabilities are vested by a vesting order, the 15
following provisions have effect (subject to the vesting order): 16
(a) the assets vest in the transferee by virtue of this clause and 17
without the need for any conveyance, transfer, assignment or 18
assurance, 19
(b) the rights and liabilities become, by virtue of this clause, the 20
rights and liabilities of the transferee, 21
(c) all proceedings relating to the assets, rights or liabilities pending 22
by or against the transferor are taken to be proceedings pending 23
by or against the transferee, 24
(d) any act, matter or thing done or omitted to be done in relation to 25
the assets, rights or liabilities by, to or in respect of the transferor 26
is (to the extent that the act, matter or thing has any force or 27
effect) taken to have been done or omitted by, to or in respect of 28
the transferee, 29
(e) a reference in any Act, in any instrument made under any Act or 30
in any document of any kind to the transferor or a predecessor of 31
the transferor is (to the extent that it relates to those assets or 32
liabilities but subject to the regulations), to be read as, or as 33
including, a reference to the transferee. 34
(2) No attornment to the transferee by a lessee from the transferor is 35
required. 36
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Schedule 4 Vesting of assets, rights and liabilities
4 Terms and conditions of vesting 1
A vesting order may be made on such terms and conditions as are 2
specified in the order. 3
5 Consideration for vesting 4
A vesting order may specify the consideration for which a vesting to 5
which it applies is made and the value or values at which assets, rights 6
or liabilities are vested. 7
6 Date of vesting 8
A vesting order takes effect on the date it is made or on such other date 9
as may be specified in the order. 10
7 Vesting of interests in land 11
(1) A vesting order may vest an interest in respect of land vested in the 12
transferor without vesting the whole of the interests of the transferor in 13
that land. 14
(2) If the interest vested is not a separate interest, the order operates to 15
create the interest vested in such terms as are specified in the order. 16
(3) This clause does not limit any other provision of this Schedule. 17
8 Confirmation of vesting 18
(1) The Treasurer may by order in writing confirm a vesting of particular 19
assets, rights or liabilities by operation of this Schedule. 20
(2) Such an order is evidence of that vesting. 21
9 Determinations by Treasurer 22
For the purposes of the making of a vesting order, the Treasurer may 23
determine whether or not particular assets, rights or liabilities comprise 24
assets, rights or liabilities of a State electricity corporation or restructure 25
entity at a particular time, and such a determination is conclusive as to 26
the matters determined. 27
10 Certification to registration authorities 28
(1) In this clause: 29
registration authority means a person or body that has functions under 30
any law in connection with the keeping of a register in respect of assets, 31
rights or liabilities. 32
(2) A public sector agency that is the transferee or transferor under a vesting 33
order may lodge with a registration authority a certificate certifying as 34
to such information as may reasonably be required by the registration 35
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Electricity Industry Restructuring Bill 2008
Vesting of assets, rights and liabilities Schedule 4
authority to enable the registration authority to exercise any function of 1
the authority arising in connection with the vesting of any asset, right or 2
liability pursuant to the vesting order. 3
(3) Such a certificate is to be accepted and acted upon by the registration 4
authority and, despite any other law, the registration authority is not 5
entitled to require that the information concerned be provided to it in 6
any particular form or in any particular manner. 7
(4) No fee or charge is payable by the transferee to a registration authority 8
for or in respect of the exercise of any function by the registration 9
authority in connection with the vesting of an asset, right or liability by 10
a vesting order. 11
11 Evidence of orders and certificates 12
A document purporting to be a vesting order or an order or certificate 13
given under a provision of this Schedule is, unless the contrary is 14
established, taken to be such an order or certificate and to have been 15
properly made or given. 16
12 Public sector accounting policies 17
The Treasurer may give directions to public sector agencies for or with 18
respect to accounting policies to be applied by public sector agencies in 19
connection with the transfer between public sector agencies of assets, 20
rights and liabilities of a State electricity corporation or restructure 21
entity for the purposes of the authorised restructuring (in place of public 22
sector accounting policies that would otherwise be applicable in respect 23
of any such transfer). 24
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Electricity Industry Restructuring Bill 2008
Schedule 5 Transfer of electricity employees
Schedule 5 Transfer of electricity employees 1
(Section 15) 2
1 Transfer of electricity employees within public sector 3
The Treasurer may by order in writing transfer the employment of an 4
employee of an electricity distributor or electricity generator from a 5
public sector agency that employs the employee to the employment of 6
another public sector agency. 7
2 Transfer of generator employees to private sector 8
The employment of an employee of an electricity generator may be 9
transferred from a public sector agency that employs the employee to 10
the employment of an employer in the private sector by order in writing 11
of the Treasurer. 12
3 Transfer of retail employees to private sector 13
(1) The employment of an employee of an electricity distributor may be 14
transferred from a public sector agency that employs the employee to 15
the employment of an employer in the private sector by agreement in 16
writing (an employment transfer agreement) entered into between the 17
employee and the public sector agency with the concurrence of the 18
private sector employer. 19
(2) An agreement is not an employment transfer agreement unless the 20
agreement is expressed to be made in connection with the operation of 21
this Act. 22
4 Effect of transfer by order 23
On the transfer by order under this Schedule of an employee's 24
employment from one employer (the current employer) to another 25
employer (the new employer): 26
(a) the employee ceases to be an employee of the current employer 27
and becomes an employee of the new employer on the same 28
terms and conditions of employment as applied to the employee 29
immediately before the transfer of employment, and those terms 30
and conditions are to continue to have effect until varied either by 31
agreement or otherwise in accordance with law, and 32
(b) without limiting paragraph (a), the employee is entitled to 33
continue as a contributor and employee for the purposes of any 34
superannuation scheme to which he or she was a contributor as 35
an employee of the current employer immediately before the 36
transfer, and to any benefits in respect of employer contributions 37
to superannuation that applied to the employee pursuant to the 38
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Electricity Industry Restructuring Bill 2008
Transfer of electricity employees Schedule 5
terms and conditions of employment immediately before the 1
transfer (and remains so entitled until those terms and conditions 2
are varied either by agreement or otherwise in accordance with 3
law), and 4
(c) the new employer is taken to be an employer for the purposes of 5
any superannuation scheme to which the employee continues to 6
contribute pursuant to an entitlement under this clause, and 7
(d) the continuity of the employee's contract of employment is taken 8
not to have been broken by the transfer of employment, and 9
service of the employee with the current employer (including 10
service deemed to be service with the current employer) that is 11
continuous service up to the time of transfer is taken for all 12
purposes to be service with the new employer, and 13
(e) the employee retains any rights to sick leave, annual leave or long 14
service leave accrued or accruing immediately before the transfer 15
(except accrued leave for which the employee has, on ceasing to 16
be an employee of the current employer, been paid the monetary 17
value in pursuance of any other entitlement of the employee), and 18
(f) without affecting any entitlement to a transfer payment under 19
clause 6, the employee is not entitled to receive any payment or 20
other benefit (including in the nature of severance pay or 21
redundancy compensation) merely because the employee ceased 22
to be an employee of the current employer as a result of the 23
transfer of employment. 24
5 Effect of transfer by employment transfer agreement 25
On the transfer by an employment transfer agreement of an employee's 26
employment from one employer (the current employer) to another 27
employer (the new employer): 28
(a) the employee becomes an employee of the new employer on the 29
terms and conditions specified in the agreement, and 30
(b) the employee is entitled to continue as a contributor and 31
employee for the purposes of any superannuation scheme to 32
which he or she was a contributor as an employee of the current 33
employer immediately before the transfer, and to any benefits in 34
respect of employer contributions to superannuation that applied 35
to the employee pursuant to the terms and conditions of 36
employment immediately before the transfer (and remains so 37
entitled until those terms and conditions are varied by agreement 38
with the new employer), and 39
(c) the new employer is taken to be an employer for the purposes of 40
any superannuation scheme to which the employee continues to 41
contribute pursuant to an entitlement under this clause, and 42
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Schedule 5 Transfer of electricity employees
(d) for the purpose of the accrual of sick leave, annual leave or long 1
service leave in respect of service with the new employer, the 2
continuity of the employee's contract of employment is taken not 3
to have been broken by the transfer of employment, and service 4
of the employee with the current employer (including service 5
deemed to be service with the current employer) that is 6
continuous service up to the time of transfer is taken to be service 7
with the new employer, and 8
(e) the employee retains any rights to sick leave, annual leave or long 9
service leave accrued or accruing immediately before the transfer 10
(except accrued leave for which the employee has, on ceasing to 11
be an employee of the current employer, been paid the monetary 12
value in pursuance of any other entitlement of the employee), and 13
(f) without affecting any entitlement to a transfer payment under 14
clause 6, the employee is not entitled to receive any payment or 15
other benefit (including in the nature of severance pay or 16
redundancy compensation) merely because the employee ceased 17
to be an employee of the current employer as a result of the 18
transfer of employment. 19
6 Transfer payments 20
(1) The Treasurer or another public sector agency may enter into 21
agreements or other arrangements with respect to the making of transfer 22
payments to employees in connection with the transfer of employment 23
of employees under this Schedule or otherwise in connection with the 24
operation of this Act. 25
(2) Any such arrangements may provide for the payment of any such 26
transfer payments to be payments on the occasion of the termination of 27
employment with the current employer despite any provision of 28
clause 4 or 5. 29
7 Payment of monetary value of leave 30
Nothing in the Industrial Relations Act 1996, the Long Service Leave 31
Act 1955 or the Annual Holidays Act 1944 prevents payment in 32
connection with the operation of this Act of the monetary value of 33
annual leave or long service leave in lieu of an entitlement to that leave 34
accrued by a person as an employee of a public sector agency before the 35
transfer of the employee's employment under this Schedule. 36
8 Workplace relations 37
The Treasurer may negotiate and enter into agreements or industrial 38
instruments concerning workplace relations for or on behalf of the State 39
or a public sector agency in connection with the operation of this Act. 40
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Ownership restrictions in floated restructure companies Schedule 6
Schedule 6 Ownership restrictions in floated 1
restructure companies 2
(Section 23) 3
Part 1 Ownership restrictions 4
Note. Some of the terms and expressions used in this Part are defined in Part 5 (Interpretative 5
provisions) of this Schedule. 6
1 Meaning of "prohibited ownership situation" 7
For the purposes of this Schedule, a prohibited ownership situation 8
exists in relation to a floated restructure company and in relation to a 9
particular person if the person holds a particular type of stake in the 10
company of more than the maximum ownership level set by section 23. 11
Note. Section 23 sets a maximum ownership level of 10 percent (or such 12
greater percentage as may be fixed by the Treasurer under that section). A 13
person's stake includes the interests of the person's associates--see Part 5 of 14
this Schedule. 15
2 Acquisition of shares that result in prohibited ownership situation 16
A person, or 2 or more persons under an arrangement, who acquire 17
shares in a floated restructure company are each guilty of an offence if: 18
(a) the acquisition has any of the following results: 19
(i) a prohibited ownership situation comes into existence in 20
relation to the company and in relation to a person, 21
(ii) if a prohibited ownership situation already exists in 22
relation to the company and in relation to a person--there 23
is an increase in any type of stake held by the person in the 24
company, and 25
(b) the person or persons under the arrangement knew, or were 26
reckless as to whether, the acquisition would have that result. 27
Maximum penalty: 400 penalty units. 28
3 Floated restructure company to take reasonable steps to prevent 29
contraventions of ownership restrictions 30
(1) A floated restructure company must take all reasonable steps to ensure 31
that a prohibited ownership situation does not exist in relation to the 32
company. 33
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Schedule 6 Ownership restrictions in floated restructure companies
(2) A floated restructure company is guilty of an offence if it engages in 1
conduct that contravenes a requirement of subclause (1). 2
Maximum penalty: 500 penalty units. 3
Note. If a floated restructure company contravenes this subclause, section 35 4
operates to make each person who is a director of the company or who is 5
concerned in the management of the company liable for the offence if the 6
person knowingly authorised or permitted the contravention. 7
(3) An offence under subclause (2) is a strict liability offence. 8
4 Contravention of Part does not affect validity of acts 9
An act is not invalidated only because it constitutes an offence under 10
this Part. 11
Part 2 Location of Member Registers of floated 12
restructure companies 13
5 Member Register to be within the State 14
A floated restructure company must not, without the written approval of 15
the Treasurer: 16
(a) change the location where any Member Register of the company 17
is kept to a location that is outside of the territorial limits of the 18
State, or 19
(b) keep any Member Register of the company at a location that is 20
outside of the territorial limits of the State. 21
Maximum penalty: 500 penalty units. 22
Note. If a floated restructure company contravenes this clause, section 35 23
operates to make each person who is a director of the company or who is 24
concerned in the management of the company liable for the offence if the 25
person knowingly authorised or permitted the contravention. 26
Part 3 Records and information 27
6 Record-keeping and information giving 28
(1) The regulations may make provision for or with respect to requiring a 29
person: 30
(a) to keep and retain records, where the records are relevant to an 31
ownership matter, and 32
(b) to give information to the Treasurer or a floated restructure 33
company that is relevant to: 34
(i) an ownership matter, or 35
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Ownership restrictions in floated restructure companies Schedule 6
(ii) ascertaining whether Part 1 of this Schedule has been or is 1
being complied with. 2
(2) The regulations may provide that information given in accordance with 3
a requirement of regulations made for the purposes of subclause (1) (b) 4
must be verified by statutory declaration. 5
(3) A person is not excused from giving information in accordance with a 6
requirement of regulations made for the purposes of subclause (1) (b) 7
on the ground that the information may tend to incriminate the person 8
or expose the person to a penalty. 9
(4) However, any information obtained from a natural person in 10
compliance with a requirement of regulations made for the purposes of 11
subclause (1) (b) is not admissible against the person in criminal 12
proceedings other than proceedings for an offence under this clause. 13
(5) A person must keep records, and provide information, in compliance 14
with any requirements of regulations made for the purposes of 15
subclause (1) (b). 16
Maximum penalty: 50 penalty units. 17
(6) In this clause: 18
control includes control as a result of, or by means of, trusts, 19
agreements, arrangements, understandings and practices, whether or 20
not having legal or equitable force and whether or not based on legal or 21
equitable rights. 22
ownership matter means any of the following matters: 23
(a) whether a person holds a particular type of stake in a floated 24
restructure company and, if so, the level of that stake, 25
(b) whether the directors of a floated restructure company are 26
accustomed or under an obligation, whether formal or informal, 27
to act in accordance with the directions, instructions or wishes of 28
a person (either alone or together with associates), 29
(c) whether a person (either alone or together with associates) is in a 30
position to exercise control over a floated restructure company. 31
Part 4 Remedial orders 32
7 Applications to Supreme Court for remedial orders 33
(1) If a prohibited ownership situation exists in relation to a floated 34
restructure company, the company or the Treasurer (or both) may apply 35
to the Supreme Court to make such orders as the Court considers 36
appropriate for the purpose of ensuring that the situation ceases to exist. 37
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Schedule 6 Ownership restrictions in floated restructure companies
(2) Without limiting subclause (1), the Court may make any of the 1
following orders on any such application: 2
(a) an order directing the disposal of shares, 3
(b) an order restraining the exercise of any rights attached to shares, 4
(c) an order prohibiting or deferring the payment of any sums due to 5
a person in respect of shares held by the person, 6
(d) an order that any exercise of rights attached to shares be 7
disregarded. 8
(3) The Supreme Court may, before making an order under this clause, 9
direct that notice of the application be given to such persons as it thinks 10
fit or be published in such manner as it thinks fit, or both. 11
(4) A floated restructure company and its directors and secretary are 12
specifically authorised and required to ensure that any rights attached to 13
shares are not exercised in contravention of an order made under this 14
clause (including ensuring that meetings of the company are conducted 15
in accordance with requirements of any such order). 16
8 Injunctions 17
If a person has engaged, is engaging or is proposing to engage in any 18
conduct in contravention of this Schedule, the Supreme Court may, on 19
the application of a floated restructure company or the Treasurer (or 20
both), grant an injunction: 21
(a) restraining the person from engaging in the conduct, or 22
(b) requiring the person to do something. 23
Part 5 Interpretative provisions 24
9 Definitions 25
In this Schedule: 26
acquisition includes an agreement to acquire, but does not include: 27
(a) an acquisition by will or by devolution by operation of law, or 28
(b) an acquisition by way of enforcement of a loan security. 29
aggregate substantial interest, in relation to a trust estate, has the 30
meaning given by clause 19. 31
arrangement has the meaning given by clause 10. 32
associate has the meaning given by clause 11. 33
company means a body corporate. 34
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Ownership restrictions in floated restructure companies Schedule 6
constituent document, in relation to a company, means: 1
(a) the constitution of the company, or 2
(b) any rules or other documents constituting the company or 3
governing its activities. 4
contravene includes fail to comply with. 5
direct control interest has the meaning given by clause 18. 6
director includes any person occupying the position of director of a 7
company, by whatever name called. 8
discretionary trust means a trust where: 9
(a) a person (who may include the trustee) is empowered (either 10
unconditionally or on the fulfilment of a condition) to exercise 11
any power of appointment or other discretion, and 12
(b) the exercise of the power or discretion, or the failure to exercise 13
the power or discretion, has the effect of determining, to any 14
extent, either or both of the following: 15
(i) the identities of those who may benefit under the trust, 16
(ii) how beneficiaries are to benefit, as between themselves, 17
under the trust. 18
engage in conduct means do an act or omit to do an act. 19
floated restructure company means a restructure company in relation 20
to which the ownership restrictions set out in this Schedule apply by 21
reason of section 23. 22
increase, in relation to a stake in a company, includes an increase from 23
a starting point of nil. 24
interest in a share has the meaning given by clause 14. 25
lender, in relation to a loan security, means the person who is entitled 26
to enforce the security. 27
lending money includes providing non equity finance where the 28
provision of the finance may reasonably be regarded as equivalent to 29
lending money. 30
loan security means a security held solely for the purposes of a 31
moneylending agreement. 32
Member Register of a company means a register of members of the 33
company kept under Chapter 2C of the Corporations Act. 34
moneylending agreement means an agreement entered into in good 35
faith in the ordinary course of carrying on a business of lending money, 36
but does not include an agreement dealing with any matter unrelated to 37
the carrying on of that business. 38
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Schedule 6 Ownership restrictions in floated restructure companies
officer, in relation to a company, includes: 1
(a) a director, secretary or employee of the company, or 2
(b) a receiver and manager of any part of the undertaking of the 3
company appointed under a power contained in any instrument, 4
or 5
(c) a liquidator of the company appointed in a voluntary winding up. 6
power to appoint a director of a company has a meaning affected by 7
clause 12. 8
relative, in relation to a person, means: 9
(a) the person's spouse or the person's de facto partner (being the 10
other party to a de facto relationship, within the meaning of the 11
Property (Relationships) Act 1984, with the person), or 12
(b) a parent or remoter lineal ancestor of the person, or 13
(c) a child or remoter issue of the person, or 14
(d) a sibling of the person. 15
share, in relation to a company, means a share in the share capital of the 16
company, and includes an interest in such a share. 17
stake, in relation to a company, has the meaning given by clause 17. 18
substantial interest, in relation to a trust estate, has the meaning given 19
by clause 19. 20
voting power has the meaning given by clause 16. 21
10 Entering into an agreement or arrangement 22
(1) For the purposes of this Schedule, a person is taken to have proposed to 23
enter into an agreement or arrangement if the person takes part in, or 24
proposes to take part in, negotiations with a view to entering into the 25
agreement or arrangement. 26
(2) A reference in this Schedule to entering into an agreement or 27
arrangement includes a reference to altering or varying an agreement 28
or arrangement. 29
(3) A reference in this Schedule to entering into an arrangement is a 30
reference to entering into any formal or informal scheme, arrangement 31
or understanding, whether expressly or by implication and, without 32
limiting the generality of the foregoing, includes a reference to: 33
(a) entering into an agreement, or 34
(b) creating a trust, whether express or implied, or 35
(c) entering into a transaction, 36
and a reference in this Schedule to an arrangement is to be construed 37
accordingly. 38
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Ownership restrictions in floated restructure companies Schedule 6
(4) A reference in this Schedule to an arrangement does not include a 1
reference to a moneylending agreement. 2
11 Associates 3
(1) For the purposes of this Schedule, the following persons are, subject to 4
subclause (3), associates of a person: 5
(a) a relative of the person, 6
(b) a partner of the person, 7
(c) a company of which the person is an officer, 8
(d) if the person is a company--an officer of the company, 9
(e) an employee or employer of the person, 10
(f) an officer of a company of which the person is an officer, 11
(g) an employee of an individual of whom the person is an employee, 12
(h) the trustee of a discretionary trust where the person or another 13
person who is an associate of the person by virtue of another 14
paragraph of this subclause benefits, or is capable (whether by the 15
exercise of a power of appointment or otherwise) of benefiting, 16
under the trust, either directly or through any interposed 17
companies, partnerships or trusts, 18
(i) a company whose directors are accustomed or under an 19
obligation, whether formal or informal, to act in accordance with 20
the directions, instructions or wishes of the person, 21
(j) a company where the person is accustomed or under an 22
obligation, whether formal or informal, to act in accordance with 23
the directions, instructions or wishes of the company, 24
(k) a company in which the person has, apart from this paragraph, a 25
particular type of stake of not less than 15 percent, 26
(l) if the person is a company--a person who holds, apart from this 27
paragraph, a particular type of stake in the company of not less 28
than 15 percent, 29
(m) a person who is, because of this subclause, an associate of any 30
other person who is an associate of the person (including a person 31
who is an associate of the person by any other application or 32
applications of this paragraph). 33
(2) If a person (the first person) enters, or proposes to enter, into an 34
arrangement with another person (the second person) that relates to any 35
of the following matters: 36
(a) the first person and the second person being in a position, by 37
acting together, to control any of the voting power in a company, 38
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Schedule 6 Ownership restrictions in floated restructure companies
(b) the power of the first person and the second person, by acting 1
together, to appoint or remove a director of a company, 2
(c) the situation where one or more of the directors of a company are 3
accustomed or under an obligation, whether formal or informal, 4
to act in accordance with the directions, instructions or wishes of 5
the first person and the second person acting together, 6
the second person is taken to be an associate of the first person for the 7
purposes of the application of a provision of this Schedule in relation to 8
the matter concerned. 9
(3) The regulations may provide that, for the purposes of this Schedule, a 10
specified person (or class of persons) is not an associate of another 11
specified person (or class of persons). 12
12 Power to appoint director 13
(1) A reference in this Schedule to a power to appoint a director includes a 14
reference to such a power whether exercisable with or without the 15
consent or concurrence of any other person. 16
(2) For the purposes of this Schedule, a person is taken to have the power 17
to appoint a director if: 18
(a) the person has the power (whether exercisable with or without the 19
consent or concurrence of any other person) to veto such an 20
appointment, or 21
(b) a person's appointment as a director of the company follows 22
necessarily from that person being a director or other officer of 23
the first mentioned person. 24
13 Meaning of entitled to acquire 25
For the purposes of this Schedule, a person is entitled to acquire 26
anything if the person is absolutely or contingently entitled to acquire it, 27
whether because of any constituent document of a company, the 28
exercise of any right or option or for any other reason. 29
14 Meaning of interest in a share 30
(1) Subject to this clause, a person holds an interest in a share if the person 31
has any legal or equitable interest in the share. 32
(2) Without limiting subclause (1), a person is taken to hold an interest in a 33
share if: 34
(a) the person has entered into a contract to purchase the share, or 35
(b) the person has a right (otherwise than because of having an 36
interest under a trust) to have the share transferred to the person 37
or to the person's order (whether the right is exercisable presently 38
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Ownership restrictions in floated restructure companies Schedule 6
or in the future and whether or not on the fulfilment of a 1
condition), or 2
(c) the person has a right to acquire the share, or an interest in the 3
share, under an option (whether the right is exercisable presently 4
or in the future and whether or not on the fulfilment of a 5
condition), or 6
(d) the person is otherwise entitled to acquire the share or an interest 7
in the share, or 8
(e) the person is entitled (otherwise than because of having been 9
appointed as a proxy or representative to vote at a meeting of 10
members of the company or of a class of its members) to exercise 11
or control the exercise of a right attached to the share. 12
(3) A person is taken to hold an interest in a share even if the person holds 13
the interest in the share jointly with another person. 14
(4) For the purpose of determining whether a person holds an interest in a 15
share, it is immaterial that the interest cannot be related to a particular 16
share. 17
(5) An interest in a share is not to be disregarded only because of: 18
(a) its remoteness, or 19
(b) the manner in which it arose, or 20
(c) the fact that the exercise of a right conferred by the interest is, or 21
is capable of being made, subject to restraint or restriction. 22
15 Certain interests and stakes to be disregarded 23
(1) For the purposes of this Schedule, the following interests and stakes 24
must be disregarded: 25
(a) an interest in a share held by a person whose ordinary business 26
includes the lending of money if the person holds the interest as 27
a loan security, 28
(b) an interest in a share held by a person, being an interest held by 29
the person because the person holds an office (or an office 30
belonging to a class of offices) prescribed by the regulations, 31
(c) an interest of a prescribed kind in a share, being an interest held 32
by such persons (or persons belonging to a class of persons) as are 33
prescribed by the regulations, 34
(d) an interest in a share held by the State or a public sector agency, 35
(e) a stake of a kind prescribed by the regulations in a company, 36
being a stake held by a person (or person belonging to a class of 37
persons) prescribed by the regulations. 38
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Schedule 6 Ownership restrictions in floated restructure companies
(2) For the purposes of this Schedule, if: 1
(a) a person holds an interest in a share as a loan security, and 2
(b) the ordinary business of the person includes the lending of 3
money, and 4
(c) the loan security is enforced, and 5
(d) as a result of the enforcement of the loan security, the person 6
becomes the holder of the share, and 7
(e) the person holds the share for a continuous period (the holding 8
period) beginning at the time when the security was enforced, 9
the person's interest in the share must be disregarded at all times during 10
so much of the holding period as occurs during whichever of the 11
following periods is applicable: 12
(f) the period of 90 days beginning when the security was enforced, 13
(g) if the Treasurer, by written notice given to the person, allows a 14
longer period--the end of that longer period. 15
(3) For the purposes of this Schedule, if: 16
(a) a person acquires an interest in a share in a floated restructure 17
company, and 18
(b) the interest was acquired in the person's capacity as an 19
underwriter or a sub-underwriter in connection with the sale or 20
issue of shares in the company by or on behalf of a public sector 21
agency or the company (whether under an initial public offer of 22
the company or otherwise), 23
the person's interest in the share must be disregarded at all times during 24
whichever of the following periods is applicable: 25
(c) the period of 90 days beginning when the person acquired the 26
interest, 27
(d) if the Treasurer, by written notice given to the person, allows a 28
longer period--that longer period. 29
16 Voting power 30
(1) A reference in this Schedule to the voting power in a company is a 31
reference to the total rights of shareholders to vote, or participate in any 32
decision making, concerning any of the following: 33
(a) the making of distributions of capital or profits of the company to 34
its shareholders, 35
(b) the constituent document of the company, 36
(c) any variation of the share capital of the company. 37
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Electricity Industry Restructuring Bill 2008
Ownership restrictions in floated restructure companies Schedule 6
(2) A reference in this Schedule to control of the voting power in a 1
company is a reference to control that is direct or indirect, including 2
control that is exercisable as a result of or by means of arrangements or 3
practices: 4
(a) whether or not having legal or equitable force, and 5
(b) whether or not based on legal or equitable rights. 6
(3) If the percentage of total rights to vote or participate in decision making 7
differs as between different types of voting or decision making, the 8
highest of those percentages applies for the purposes of this clause. 9
(4) If a company: 10
(a) is limited both by shares and by guarantee, or 11
(b) does not have a share capital, 12
this clause has effect as if the members or policy holders of the company 13
were shareholders in the company. 14
17 Stake in a company 15
(1) A particular type of stake that a person holds in a company at a 16
particular time is the aggregate of: 17
(a) the direct control interests in the company of that type that the 18
person holds at that time, and 19
(b) the direct control interests in the company of that type held at that 20
time by associates of the person. 21
(2) In calculating the stake that a person holds in a company, a direct 22
control interest held because of clause 18 (5) is not to be counted under 23
subclause (1) (a) to the extent to which it is calculated by reference to a 24
direct control interest in the company that is taken into account under 25
subclause (1) (b). 26
18 Direct control interests in a company 27
(1) A person holds a direct control interest in a company at a particular 28
time equal to the percentage of the total paid-up share capital of the 29
company in which the person holds an interest at that time. 30
(2) A person also holds a direct control interest in a company at a particular 31
time equal to the percentage of the voting power in the company that the 32
person is in a position to control at that time. 33
(3) A person also holds a direct control interest in a company at a particular 34
time equal to the percentage that the person holds, or is entitled to 35
acquire, at that time of the total rights to distributions of capital or 36
profits of the company to its shareholders on winding up. 37
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Electricity Industry Restructuring Bill 2008
Schedule 6 Ownership restrictions in floated restructure companies
(4) A person also holds a direct control interest in a company at a particular 1
time equal to the percentage that the person holds, or is entitled to 2
acquire, at that time of the total rights to distributions of capital or 3
profits of the company to its shareholders, otherwise than on winding 4
up. 5
(5) If: 6
(a) a person holds a particular type of direct control interest 7
(including a direct control interest that is taken to be held because 8
of one or more previous applications of this subclause) in a 9
company (the first level company), and 10
(b) the first level company holds the same type of direct control 11
interest in another company (the second level company), 12
the person is taken to hold that type of direct control interest in the 13
second level company equal to the percentage worked out using the 14
formula: 15
first level percentage × second level percentage
where: 16
first level percentage means the percentage of the direct control interest 17
held by the person in the first level company. 18
second level percentage means the percentage of the direct control 19
interest held by the first level company in the second level company. 20
19 Substantial interests in trust estates 21
(1) For the purposes of this Schedule: 22
(a) a person is taken to hold a substantial interest in a trust estate if 23
the person, alone or together with an associate or associates, 24
holds a beneficial interest in not less than 15 percent of the corpus 25
or income of the trust estate, and 26
(b) 2 or more persons are taken to hold an aggregate substantial 27
interest in a trust estate if the persons, together with an associate 28
or associates, hold, in the aggregate, beneficial interests in not 29
less than 40 percent of the corpus or income of the trust estate. 30
(2) For the purposes of subclause (1), if, under the terms of a trust, a trustee 31
has a power or discretion as to the distribution of the income or corpus 32
of the trust estate to beneficiaries, each beneficiary is taken to hold a 33
beneficial interest in the maximum percentage of income or corpus of 34
the trust estate that the trustee is empowered to distribute to that 35
beneficiary. 36
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Electricity Industry Restructuring Bill 2008
Savings, transitional and other provisions Schedule 7
Schedule 7 Savings, transitional and other 1
provisions 2
(Section 38) 3
Part 1 General 4
1 Regulations 5
(1) The regulations may contain provisions of a savings or transitional 6
nature consequent on the enactment of the following Acts: 7
this Act 8
(2) For the avoidance of doubt, any such provision may, if the regulations 9
so provide, have effect despite any specified provision of this Schedule. 10
(3) Any such provision may, if the regulations so provide, take effect from 11
the date of assent to the Act concerned or a later date. 12
(4) To the extent to which any such provision takes effect from a date that 13
is earlier than the date of its publication in the Gazette, the provision 14
does not operate so as: 15
(a) to affect, in a manner prejudicial to any person (other than the 16
State or an authority of the State), the rights of that person 17
existing before the date of its publication, or 18
(b) to impose liabilities on any person (other than the State or an 19
authority of the State) in respect of anything done or omitted to 20
be done before the date of its publication. 21
Part 2 Provisions consequent on enactment of this 22
Act 23
2 Provisions relating to Shoalhaven or Warragamba electricity assets 24
(1) In this clause: 25
private person means any person other than the Sydney Catchment 26
Authority, TransGrid or any other public sector agency. 27
Shoalhaven or Warragamba electricity assets means: 28
(a) any power stations or pumping stations located at or within 29
Kangaroo Valley by means of which Eraring Energy generates 30
electricity (including any associated pipelines, switching 31
stations, substations and transmission lines) but excluding all 32
other assets (including dams, pipelines, tunnels and channels) 33
owned, maintained and operated by the Sydney Catchment 34
Authority at or within Kangaroo Valley, or 35
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Electricity Industry Restructuring Bill 2008
Schedule 7 Savings, transitional and other provisions
(b) any power station located at or within Warragamba Dam by 1
means of which Eraring Energy generates electricity (including 2
any associated pipelines, switching stations and substations). 3
(2) The Treasurer may: 4
(a) certify, by order in writing (a certification order), that any 5
specified assets, rights or liabilities that the Treasurer considers 6
are used for the purposes of, or in connection with, any 7
Shoalhaven or Warragamba electricity assets are the assets, rights 8
or liabilities of a State electricity corporation, TransGrid or other 9
public sector agency (a nominated public sector agency), and 10
(b) without limiting paragraph (a)--acquire, on behalf of the Crown, 11
any land (including any interest in land) by agreement or 12
compulsory process in accordance with the Land Acquisition 13
(Just Terms Compensation) Act 1991 that the Treasurer considers 14
is land that is used for the purposes of, or in connection with, any 15
Shoalhaven or Warragamba electricity assets. 16
(3) The following provisions apply in relation to any assets, rights or 17
liabilities that the Treasurer, by certification order, certifies to be the 18
assets, rights or liabilities of a nominated public sector agency: 19
(a) any of the assets, rights or liabilities that are not already the 20
assets, rights or liabilities of the agency (other than any assets, 21
rights or liabilities of a private person) are transferred to the 22
agency and, for this purpose, Schedule 4 (Vesting of assets, rights 23
and liabilities) applies in relation to the certification order as if it 24
were a vesting order under that Schedule having effect on the day 25
on which the certification order has effect, 26
(b) the certification order is evidence that the assets, rights or 27
liabilities specified in the order are the assets, rights or liabilities 28
of the agency. 29
(4) The following provisions apply in relation to any acquisition of land by 30
the Treasurer that is authorised by this clause: 31
(a) Division 1 (Pre-acquisition procedures) of Part 2 of the Land 32
Acquisition (Just Terms Compensation) Act 1991 does not apply 33
to such an acquisition, 34
(b) any owner of an interest in the land is not entitled to be paid 35
compensation (whether under the Land Acquisition (Just Terms 36
Compensation) Act 1991 or otherwise) if the land is acquired by 37
compulsory process and the owner is the Sydney Catchment 38
Authority or any other public sector agency, 39
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Electricity Industry Restructuring Bill 2008
Savings, transitional and other provisions Schedule 7
(c) the land may be acquired even if any consent or permission 1
required under State legislation (other than under the Land 2
Acquisition (Just Terms Compensation) Act 1991) has not been 3
obtained or granted, 4
(d) land that is acquired may be transferred, by order of the Treasurer 5
in writing, to a State electricity corporation, TransGrid or other 6
public sector agency and Schedule 4 (Vesting of assets, rights and 7
liabilities) applies in relation to such an order. 8
(5) Without limiting section 26 (General relationship of Act with other 9
State legislation), the provisions of this clause (including the provisions 10
of any order made under this clause) have effect despite the following: 11
(a) the Crown Lands Act 1989 or any statutory rule or order made 12
under that Act (whether made before or after the commencement 13
of this clause), 14
(b) the Energy Services Corporations Act 1995 or any statutory rule 15
or order made under that Act (whether made before or after the 16
commencement of this clause), 17
(c) the Sydney Water Catchment Management Act 1998 (including, 18
without limitation, Division 2 of Part 5 of that Act) or any 19
statutory rule or order made under that Act (whether made before 20
or after the commencement of this clause). 21
(6) Nothing in this clause limits section 14 (Vesting orders). 22
Page 51
Electricity Industry Restructuring Bill 2008
Schedule 8 Amendment of Acts and Regulation
Schedule 8 Amendment of Acts and Regulation 1
(Section 39) 2
8.1 Electricity Supply Act 1995 No 94 3
[1] Section 43EA Referrals for determinations 4
Omit section 43EA (1) and (2). Insert instead: 5
(1) The Minister may refer to the Tribunal, for investigation and 6
report, the determination of new regulated retail tariffs or 7
regulated retail charges, or both, to replace an existing 8
determination: 9
(a) on the expiry of the period to which the existing 10
determination relates, or 11
(b) before the existing determination expires, but only if the 12
existing determination was in force immediately before the 13
commencement of this subsection. 14
[2] Section 43EA (5) 15
Omit the subsection. Insert instead: 16
(5) If the Minister has given a reference to the Tribunal, the Minister 17
may withdraw or amend the reference at any time before the 18
Minister has received the report from the Tribunal if all of the 19
retail suppliers in relation to which the determination will apply 20
consent in writing to the withdrawal or amendment of the 21
reference. 22
[3] Section 43EA (7) and (8) 23
Insert after section 43EA (6): 24
(7) Despite anything in the Independent Pricing and Regulatory 25
Tribunal Act 1992 or any other law, the Minister may refer to the 26
Tribunal, for investigation and report, the determination of 27
regulated retail tariffs or regulated retail charges, or both, only as 28
provided by this section. 29
(8) Except as provided by subsection (1), the amendments made to 30
this section by the Electricity Industry Restructuring Act 2008 do 31
not affect the continued operation of any determination made by 32
the Tribunal under this section that was in force immediately 33
before the commencement of this subsection. 34
Page 52
Electricity Industry Restructuring Bill 2008
Amendment of Acts and Regulation Schedule 8
[4] Section 43EJ Division to cease to have effect 1
Omit section 43EJ (1). Insert instead: 2
(1) The provisions of this Division (other than this section) cease to 3
have effect on 30 June 2013 or on such later day as may be 4
prescribed by the regulations. 5
[5] Section 43EL Definitions 6
Omit the definition of electricity generator. Insert instead: 7
electricity generator means: 8
(a) a corporation whose corporate name is listed in Part 1 of 9
Schedule 1 to the Energy Services Corporations Act 1995, 10
or 11
(b) a public sector agency that is an electricity generator for 12
the purposes of the Electricity Industry Restructuring Act 13
2008, or 14
(c) a person who is the owner, lessee or sublessee of a power 15
station that comprised State electricity assets of an 16
electricity generator under the Electricity Industry 17
Restructuring Act 2008 immediately before the transfer of 18
the power station to the private sector pursuant to the 19
authorised restructuring under that Act. 20
[6] Section 43EL, definition of "Snowy Hydro Limited" 21
Omit the definition. 22
[7] Section 43EN Electricity Tariff Equalisation Fund 23
Omit section 43EN (2) (c) and (3) (c). 24
[8] Section 43EN (4) 25
Insert "except as may be specifically authorised or required by the rules" after 26
"electricity industry". 27
[9] Section 43EO Rules for payments to and from Fund 28
Omit section 43EO (2) (d). 29
[10] Section 43EO (2) (h) 30
Insert ", and penalties for late payment" after "made". 31
[11] Section 43EO (4) 32
Omit the subsection. 33
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Electricity Industry Restructuring Bill 2008
Schedule 8 Amendment of Acts and Regulation
[12] Section 43EO (7A) 1
Insert after section 43EO (7): 2
(7A) The rules may include provision (an entrenchment provision) 3
that limits the circumstances in which the rules or specified 4
provisions of the rules may be amended or revoked. The power 5
of the Treasurer to approve the amendment or revocation of the 6
rules is subject to the requirements of any entrenchment 7
provision. The amendment or revocation of an entrenchment 8
provision cannot be approved except with the unanimous 9
agreement of all electricity generators and standard retail 10
suppliers or as provided by the entrenchment provision itself. 11
[13] Section 43ES Division to cease to have effect 12
Omit section 43ES (1). Insert instead: 13
(1) The provisions of this Division (other than this section) cease to 14
have effect on 30 June 2010 or on such later day as may be 15
prescribed by the regulations. 16
[14] Part 7, Division 4A 17
Insert after Division 4 of Part 7: 18
Division 4A Collection and use of information 19
91A Interpretation 20
In this Division: 21
information requirement notice means a notice under section 22
91B. 23
regulatory authority means any of the following: 24
(a) the Minister, 25
(b) the Tribunal. 26
regulatory function means any function of a regulatory authority 27
that is imposed or conferred by or under this Act. 28
91B General power of regulatory authority to obtain information 29
(1) If a regulatory authority has reason to believe that a person has 30
information or a document that may assist the authority in the 31
exercise of any of its regulatory functions, the authority may, by 32
notice in writing served on the person, require the person to give 33
the information or document to the authority. 34
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Electricity Industry Restructuring Bill 2008
Amendment of Acts and Regulation Schedule 8
(2) A notice under this section must: 1
(a) specify the manner in which information or documents are 2
to be provided and a reasonable time by which the 3
information or documents are to be provided, and 4
(b) state that it is being given under this section. 5
(3) If documents are given to a regulatory authority under this 6
section, the authority: 7
(a) may take possession of, and make copies of or take 8
extracts from, the documents, and 9
(b) may keep possession of the documents for the period 10
necessary for those purposes, and 11
(c) during that period must permit them to be inspected at all 12
reasonable times by persons who would be entitled to 13
inspect them if they were not in the possession of the 14
authority. 15
91C Restriction on disclosure of confidential or commercially sensitive 16
information 17
(1) This section applies to information or a document if: 18
(a) the information or document is given to a regulatory 19
authority in compliance with an information requirement 20
notice, and 21
(b) at the time the information or document is given, the 22
person giving it states that it is of a confidential or 23
commercially sensitive nature. 24
(2) A regulatory authority must not disclose to any person any 25
information or the contents of any document to which this section 26
applies unless: 27
(a) the authority is of the opinion that: 28
(i) the disclosure of the information or document 29
would not cause detriment to the person from whom 30
it was obtained (the affected person), or 31
(ii) although the disclosure of the information or 32
document would cause detriment to an affected 33
person, the public benefit in disclosing it outweighs 34
that detriment, 35
and the authority has notified the affected person in writing 36
of the authority's intention to disclose the information or 37
document and afforded the person at least the period of 38
7 days to make representations to the authority as to why 39
the disclosure would not be appropriate, or 40
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Electricity Industry Restructuring Bill 2008
Schedule 8 Amendment of Acts and Regulation
(b) the disclosure is made with the consent of the affected 1
person, or 2
(c) the disclosure is made in connection with the 3
administration or execution of this Act, or 4
(d) the disclosure is made for the purposes of any legal 5
proceedings arising out of this Act (or any other Act) or of 6
a report of any such proceedings, or 7
(e) the disclosure is made in accordance with the Freedom of 8
Information Act 1989, or 9
(f) the disclosure is made in accordance with a requirement 10
imposed under the Ombudsman Act 1974, or 11
(g) the disclosure is made with other lawful excuse. 12
Note. Clause 7 (Documents affecting business affairs) of Schedule 1 to 13
the Freedom of Information Act 1989 provides that certain commercially 14
sensitive documents are exempt documents for the purposes of that Act. 15
Section 32 of that Act provides that an agency must not give a person 16
access to a document relating to the business, professional, commercial 17
or financial affairs of another person unless the agency has taken such 18
steps as are reasonably practicable to obtain the views of that other 19
person as to whether or not the document is an exempt document by 20
virtue of clause 7 of Schedule 1 to that Act. 21
(3) The following persons may apply to the Administrative 22
Decisions Tribunal for a review of a decision of a regulatory 23
authority to disclose any information or a document to which this 24
section applies: 25
(a) an affected person, 26
(b) any other person who might be detrimentally affected if 27
the information or document is disclosed. 28
91D Failure to comply with information requirement notice and related 29
offences 30
(1) A person must not: 31
(a) without reasonable excuse, refuse or fail to comply with an 32
information requirement notice, or 33
(b) give to a regulatory authority, in purported compliance 34
with an information requirement notice, any information 35
that the person knows to be false or misleading in a 36
material particular, or 37
(c) threaten, intimidate or coerce another person because that 38
other person complied, or intends to comply, with an 39
information requirement notice, or 40
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Electricity Industry Restructuring Bill 2008
Amendment of Acts and Regulation Schedule 8
(d) take, threaten to take, incite or be involved in any action 1
that causes another person to suffer any loss, injury or 2
disadvantage because that other person complied, or 3
intends to comply, with an information requirement notice. 4
Maximum penalty: 100 penalty units or imprisonment for 5
6 months, or both. 6
(2) It is a reasonable excuse for the purposes of subsection (1) (a) that 7
to comply with the notice might tend to incriminate a natural 8
person or make the person liable to any forfeiture or penalty. 9
91E Protection from liability 10
(1) Anything done, or omitted to be done, by a person in purported 11
compliance with an information requirement notice does not 12
subject the person personally to any action, liability, claim or 13
demand if the thing was done, or omitted to be done, in good faith 14
for the purpose of complying with the notice. 15
(2) Without limiting subsection (1), the giving of any information or 16
a document in compliance with an information requirement 17
notice is not to be regarded as: 18
(a) a breach of contract or confidence or otherwise as a civil 19
wrong, or 20
(b) a breach of any instrument, or 21
(c) an event of default under any contract or other instrument, 22
or 23
(d) giving rise to any remedy by a party to a contract or other 24
instrument, or as causing or permitting the termination of, 25
or exercise of rights under, any contract or other 26
instrument. 27
91F Relationship with other information gathering powers 28
The powers conferred by this Division on a regulatory authority 29
to obtain information or documents are in addition to, and not in 30
derogation of, any other power to obtain information or 31
documents conferred on the authority by or under this Act or any 32
other law. 33
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Electricity Industry Restructuring Bill 2008
Schedule 8 Amendment of Acts and Regulation
[15] Section 106 Regulations 1
Omit section 106 (1) (f1). Insert instead: 2
(f1) facilitating the Government's social programs for energy, 3
including (without limitation): 4
(i) the establishment and administration of programs 5
that provide for energy services to be available to 6
those who are in need (including, for example, those 7
who suffer financial hardship or other hardship and 8
those who live in remote areas), and 9
(ii) the implementation of payment plans and other 10
plans and policies by retail suppliers to assist small 11
retail customers who are experiencing financial or 12
other hardship, and 13
(iii) the making of provision for the circumstances in 14
which retail suppliers are permitted or required to 15
disconnect, discontinue or reconnect a supply of 16
electricity to the premises of their small retail 17
customers (and the persons who are to bear any 18
associated costs), and 19
(iv) the giving, and enforcement, of directions by the 20
Minister, or agreements, with respect to 21
implementation of any social program for energy in 22
relation to a specified class or specified classes of 23
customers, and 24
(v) the payment and assessment of the costs of giving 25
effect to any such directions, and 26
(vi) the publication of directions and agreements, 27
8.2 Electricity Supply (General) Regulation 2001 28
Clause 121A Date on which Divisions 5 and 6 of Part 4 of Act cease to 29
have effect 30
Omit the clause. 31
8.3 Subordinate Legislation Act 1989 No 146 32
Schedule 4 Excluded instruments 33
Insert at the end of the Schedule (with appropriate item number): 34
Regulations under the Electricity Industry Restructuring Act 35
2008. 36
Page 58
Electricity Industry Restructuring Bill 2008
Amendment of Acts and Regulation Schedule 8
8.4 Water Management Act 2000 No 92 1
Section 281 Major utilities 2
Insert after section 281 (2): 3
(3) Without limiting subsection (2), Schedule 2 may be amended 4
under that subsection to add, vary or omit the corporate name of 5
any body (including a body incorporated under the law of another 6
jurisdiction or a body that is not a public authority). 7
Page 59
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