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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Waste Recycling and Processing
Corporation (Authorised Transaction)
Bill 2010
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Interpretation 2
Part 2 The authorised transaction
4 Authority for transfer of WSN assets to private sector 3
5 Transfer of WSN assets to public sector agencies 3
6 Proceeds of transaction 3
7 WAMC Landfill Rehabilitation Fund 4
8 Treasurer to report on authorised transaction 5
Part 3 Facilitating the authorised transaction
9 Treasurer's functions 6
10 Transaction companies 6
Waste Recycling and Processing Corporation (Authorised Transaction) Bill 2010
Contents
Page
11 Functions of WSN and transaction companies 7
12 Direction and control of WSN and transaction companies 7
13 Grant of relevant authorisations 8
14 Vesting orders 9
15 Employee protections 9
16 Waste Assets Management Corporation 9
17 State taxes 10
18 Contracts for sale of land 11
Part 4 Miscellaneous
19 Release of information by Auditor-General 12
20 Delegation 12
21 Act to bind State and other jurisdictions 12
22 General relationship of Act with other State legislation 12
23 Extraterritorial operation of Act 13
24 Construction of Act and instruments so as not to exceed
legislative power 13
25 Protection of contractual and other obligations 14
26 Compensation not payable 15
27 Certificate evidence 16
28 Regulations 16
29 Savings and transitional regulations 16
30 Repeal of Waste Recycling and Processing Corporation
Act 2001 No 59 16
Schedule 1 Interpretative provisions 17
Schedule 2 Corporate conversion of WSN 20
Schedule 3 Vesting of assets, rights and liabilities 22
Schedule 4 Employee protections 25
Schedule 5 Waste Assets Management Corporation 30
Schedule 6 Amendment of Acts 33
Contents page 2
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2010
New South Wales
Waste Recycling and Processing
Corporation (Authorised Transaction)
Bill 2010
Act No , 2010
An Act to provide for the transfer of the business of the Waste Recycling and
Processing Corporation; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 1 2010
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Waste Recycling and Processing Corporation
(Authorised Transaction) Act 2010.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as
provided by subsection (2).
(2) Section 30 and Schedule 6.2 commence on a day to be appointed by
proclamation.
3 Interpretation
(1) Key definitions
In this Act:
authorised transaction means the transfer of WSN assets authorised by
Part 2.
the Fund means the WAMC Landfill Rehabilitation Fund established
by section 7.
WSN means the Waste Recycling and Processing Corporation
constituted by the Waste Recycling and Processing Corporation
Act 2001.
Note. The Waste Recycling and Processing Corporation operates under the
trading name WSN Environmental Solutions.
WSN assets means assets, rights and liabilities of WSN.
(2) Other interpretative provisions
Expressions used in this Act that are defined in Schedule 1 have the
meanings set out in that Schedule.
Page 2
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010 Clause 4
The authorised transaction Part 2
Part 2 The authorised transaction
4 Authority for transfer of WSN assets to private sector
This Act authorises the transfer to the private sector of any WSN assets.
5 Transfer of WSN assets to public sector agencies
This Act authorises the transfer of any WSN assets to one or more
public sector agencies.
6 Proceeds of transaction
(1) The proceeds of the transfer of WSN assets to the private sector
pursuant to the authorised transaction (the transaction proceeds)
belong to and are payable directly to the State.
(2) The transaction proceeds paid to the State are to be paid as follows:
(a) the amount of all outstanding WAMC landfill liabilities on the
completion of the authorised transaction (determined as provided
by section 7) is to be paid into the WAMC Landfill Rehabilitation
Fund under that section,
(b) the balance of the transaction proceeds are to be paid into the
Consolidated Fund.
(3) The following deductions are authorised to be made from the
transaction proceeds:
(a) deduction of such amounts as the Treasurer approves to repay
debt and satisfy other liabilities of a public sector agency in
respect of WSN assets transferred for the purposes of the
authorised transaction,
(b) deduction of such amounts as the Treasurer approves to
reimburse public sector agencies for payments made by them in
respect of any tax, duty, fee or charge imposed by any Act or law
of the State or any other jurisdiction in connection with a
transaction arrangement,
(c) deduction of such amounts as the Treasurer approves to satisfy
any liability of a public sector agency arising under or in
connection with a transaction arrangement,
(d) deduction of such amounts as the Treasurer approves to meet
expenses reasonably incurred by public sector agencies for the
purposes of the authorised transaction.
(4) The transaction proceeds do not include any amount certified by the
Treasurer to have been paid to a public sector agency as a tax, duty, fee
or charge imposed by any Act or law of the State in connection with a
transaction arrangement.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 7 2010
Part 2 The authorised transaction
(5) The deductions authorised to be made from the transaction proceeds
may be made before payment of transaction proceeds into the
Consolidated Fund or may be made by payment from the Consolidated
Fund.
(6) The requirements of this section do not affect the validity of a
transaction arrangement.
7 WAMC Landfill Rehabilitation Fund
(1) There is to be established in the Special Deposits Account a fund called
the WAMC Landfill Rehabilitation Fund (the Fund). The Fund is to be
administered by the Treasurer.
(2) There is payable into the Fund:
(a) out of the transaction proceeds under section 6, the amount of all
outstanding WAMC landfill liabilities as at the completion of the
authorised transaction (as determined under this section),
(b) interest and any other amounts accruing from time to time from
the investments of the Fund.
(3) There is payable from the Fund:
(a) amounts in payment of (or in reimbursement for the payment of)
any outstanding WAMC landfill liabilities, as directed by the
Treasurer from time to time,
(b) amounts for payment to the Consolidated Fund as directed by the
Treasurer from time to time, but only as permitted by this section,
(c) administrative expenses incurred in relation to the Fund.
(4) The Treasurer cannot direct a payment from the Fund to the
Consolidated Fund if the balance standing to the credit of the Fund at
the time of the payment is less than the amount of all outstanding
WAMC landfill liabilities at that time.
(5) The amount of all outstanding WAMC landfill liabilities as at the
completion of the authorised transaction is to be determined and
reported to the Treasurer by the person appointed by the Treasurer as
Technical Consultant for the authorised transaction.
(6) The annual report of the Waste Assets Management Corporation is to
include details of the amounts paid from the Fund during the financial
year to which the report relates and the purposes for which those
payments were made.
(7) The Treasurer may invest money in the Fund in such manner as may be
authorised by the Public Authorities (Financial Arrangements) Act
1987.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010 Clause 8
The authorised transaction Part 2
(8) In this section:
outstanding WAMC landfill liabilities means any liabilities of WSN in
relation to the rehabilitation and future maintenance of landfill sites that
become liabilities of the Waste Assets Management Corporation
pursuant to the authorised transaction.
8 Treasurer to report on authorised transaction
(1) The Treasurer is to prepare a report on the following matters concerning
the authorised transaction:
(a) the broad strategies for compliance with the waste management
strategies of the Environment Protection Authority,
(b) the broad strategies to be established to ensure the resolution of
any competition issues resulting from the authorised transaction.
(2) In preparing the report, the Treasurer is to consult with the Environment
Protection Authority.
(3) The Treasurer's report is to be publicly released as soon as reasonably
practicable after the completion of the authorised transaction.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 9 2010
Part 3 Facilitating the authorised transaction
Part 3 Facilitating the authorised transaction
9 Treasurer's functions
The Treasurer has and may exercise all such functions as are necessary
or convenient for the purposes of the authorised transaction. The
functions conferred on the Treasurer by any other provision of this Act
do not limit the Treasurer's functions under this section.
10 Transaction companies
(1) The Treasurer may for the purposes of the authorised transaction
establish, or direct the establishment of, companies as transaction
companies in any of the following ways:
(a) the formation or acquisition by or on behalf of the State or a SOC
of a company limited by shares, so that all the issued shares in the
company are held by or on behalf of the State or a SOC (or both),
(b) the formation or acquisition of a company as a wholly owned
subsidiary company of a transaction company,
(c) the conversion of WSN into a company limited by shares as
provided by Schedule 2.
(2) A transaction company that is a public sector agency may be converted
from one kind of company to any other kind of company.
(3) Except by express agreement with the Treasurer:
(a) a transaction company is not and does not represent the State, and
(b) the debts, liabilities and obligations of a transaction company are
not guaranteed by the State (but without affecting any guarantee
of a debt, liability or obligation of WSN that becomes a debt,
liability or obligation of the transaction company).
(4) The Treasurer may act for or on behalf of the State, a SOC or a
transaction company that is a public sector agency in connection with
the rights, privileges and benefits, and the duties, liabilities and
obligations of the State, the SOC or the transaction company as the
holder of shares or other securities in a transaction company.
(5) Shares and other securities in a transaction company that is a public
sector agency may be issued, sold or transferred in accordance with the
directions of the Treasurer.
(6) The Treasurer may on behalf of the State, a SOC or a transaction
company that is a public sector agency enter into and carry out
transaction arrangements for the issue, sale or transfer of shares and
other securities in a transaction company.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010 Clause 11
Facilitating the authorised transaction Part 3
11 Functions of WSN and transaction companies
(1) WSN and any transaction company have and may exercise all such
functions as are necessary or convenient for the purposes of the
authorised transaction.
(2) The functions conferred by this section are in addition to any other
functions that WSN or a transaction company has apart from this
section and those other functions do not prevent or otherwise limit the
exercise of the additional functions conferred by this section.
(3) The Treasurer may act for and on behalf of and in the name of WSN or
any transaction company (while it is a public sector agency) in the
exercise of any of its functions for the purposes of the authorised
transaction.
12 Direction and control of WSN and transaction companies
(1) WSN and any transaction company (while it is a public sector agency)
are subject to the direction and control of the Treasurer in the exercise
of any of their functions for the purposes of the authorised transaction.
(2) The Treasurer may give directions for the purposes of the authorised
transaction to WSN and to any transaction company, and to the directors
and other officers of WSN or a transaction company. Any such
directions must be complied with by WSN, the transaction company or
the directors or other officers concerned.
(3) Directions to a transaction company (or its directors and other officers)
can only be given and are only required to be complied with while the
transaction company is a public sector agency.
(4) The power to give directions under this section extends to directions
with respect to the way in which WSN or a transaction company is to
conduct its business and other affairs.
(5) Action taken by WSN to comply with a direction of the Treasurer under
this Act does not require the approval of the voting shareholders or
portfolio Minister of WSN.
(6) Anything done or omitted to be done by a director or other officer of
WSN or a transaction company in complying with a direction given by
the Treasurer under this Act does not subject the director or officer
personally to any action, liability, claim or demand.
(7) The provisions of this section are declared to be Corporations
legislation displacement provisions for the purposes of section 5G of the
Corporations Act.
Page 7
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 13 2010
Part 3 Facilitating the authorised transaction
13 Grant of relevant authorisations
(1) The Treasurer may give directions to a public sector agency for or with
respect to the grant of any relevant authorisation to a person who
becomes or who it is proposed will become the new operator of any
WSN assets pursuant to the authorised transaction, including directions
for or with respect to any of the following:
(a) requiring the grant of any such relevant authorisation without the
necessity for the making or determination of any application,
(b) the displacement or modification of any provision of a relevant
law in its application to the grant of any such relevant
authorisation,
(c) the conditions or endorsements subject to which any such
relevant authorisation is to be granted or that are to be attached to
any such relevant authorisation.
(2) A direction may only be given under this section for the grant of a
relevant authorisation that:
(a) operates to transfer, replace or replicate an existing relevant
authorisation that is currently in force, to the extent of its
application to or in respect of the WSN assets concerned, and
(b) is subject to terms, conditions or endorsements that are the same
(or to substantially the same effect) as those to which that existing
relevant authorisation is subject.
(3) The Treasurer must consult with a public sector agency before giving a
direction to the public sector agency under this section.
(4) A public sector agency exercising functions under a relevant law must
comply with a direction of the Treasurer under this section.
(5) Anything done by WSN in compliance with a condition or endorsement
of a relevant authorisation in relation to WSN assets of which a person
is the new operator is taken to have been done by the new operator for
the purposes of any corresponding condition or endorsement of a
relevant authorisation granted to the new operator pursuant to a
direction under this section.
(6) A relevant authorisation granted to WSN or to the new operator of WSN
assets may not be suspended or cancelled on the ground of the
conversion of WSN or the new operator to a company or on the ground
of any change that has occurred in the officers or shareholders of the
company as a result of that conversion or pursuant to a transaction
arrangement.
Page 8
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010 Clause 14
Facilitating the authorised transaction Part 3
(7) In this section:
grant includes issue and transfer.
new operator of WSN assets means:
(a) a public sector agency to which any WSN assets are transferred
for the purposes of the authorised transaction, or
(b) a person (or the nominee of a person) in whom WSN assets are
vested, or to whom WSN assets are transferred, pursuant to the
authorised transaction.
public sector agency includes a local authority.
relevant authorisation means a licence, permit, consent, entitlement,
accreditation or other authorisation under a relevant law.
relevant law means any of the following Acts and any regulations or
instruments under those Acts:
Contaminated Land Management Act 1997
Environmental Planning and Assessment Act 1979
Mining Act 1992
Protection of the Environment Operations Act 1997
Sydney Water Act 1994
Water Act 1912
Water Management Act 2000
any other Act prescribed by the regulations.
14 Vesting orders
The Treasurer may make vesting orders under Schedule 3 for the
purposes of the authorised transaction.
15 Employee protections
Schedule 4 contains provisions relating to the transfer of employees of
WSN for the purposes of the authorised transaction.
16 Waste Assets Management Corporation
(1) There is constituted by this Act a corporation with the corporate name
of the Waste Assets Management Corporation (the Corporation).
(2) The Corporation is a NSW Government agency and is, in the exercise
of the Corporation's functions, subject to the control and direction of the
Treasurer.
Page 9
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 17 2010
Part 3 Facilitating the authorised transaction
(3) The Corporation has the following functions:
(a) to hold, on behalf of the Crown, WSN assets acquired by it or
transferred to it by or under this or any other Act and to conduct
businesses, provide services and carry on activities that relate to
or are incidental to the management of any WSN assets held by it,
(b) to undertake, on behalf of the Crown, the development for any
purpose for the benefit of the State of any land comprising WSN
assets held by it,
(c) such other functions in connection with WSN assets held by it as
may be prescribed by the regulations,
(d) such other functions as may be conferred or imposed on the
Corporation by or under this or any other Act.
Note. See also Schedule 5, which makes further provision for the Corporation.
17 State taxes
(1) In this section:
relevant matter means any of the following:
(a) the transfer of WSN assets for the purposes of the authorised
transaction,
(b) a vesting of assets, rights or liabilities by operation of Schedule 3
(Vesting of assets, rights and liabilities) and anything certified by
the Treasurer as having been done in consequence of such a
vesting (for example, the transfer or registration of an interest in
land),
(c) the issue, disposal or purchase of shares or other securities in a
company for the purposes of the authorised transaction,
(d) any matter connected with the corporate conversion of WSN for
the purposes of the authorised transaction,
(e) such other matters for the purposes of the authorised transaction
as may be prescribed by the regulations.
State tax means application or registration fees, duty under the Duties
Act 1997 or any other tax, duty, fee or charge imposed by any Act or law
of the State.
(2) State tax is not payable by a public sector agency in relation to a relevant
matter.
(3) State tax is not payable by a person or body (other than a public sector
agency) in relation to a relevant matter to such extent (if any) as the
Treasurer may direct by order in writing, either generally or in a
particular case.
Page 10
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010 Clause 18
Facilitating the authorised transaction Part 3
(4) An order may be made by the Treasurer under this section before or
after the liability to pay the State tax concerned accrues.
(5) The Treasurer must give a copy of an order under this section to the
Chief Commissioner of State Revenue.
18 Contracts for sale of land
Section 52A (Contracts for sale of land) of the Conveyancing Act 1919
does not apply to a contract for the sale of land that is entered into for
the purposes of the authorised transaction.
Page 11
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 19 2010
Part 4 Miscellaneous
Part 4 Miscellaneous
19 Release of information by Auditor-General
Section 38 (Secrecy) of the Public Finance and Audit Act 1983 does not
apply to or in respect of a report or communication that the Treasurer
authorises the Auditor-General to make to a person for the purposes of
the authorised transaction.
20 Delegation
The Treasurer may delegate to the Secretary of the Treasury, or to any
other officer of the Government Service prescribed by the regulations,
any function of the Treasurer under this Act except this power of
delegation.
21 Act to bind State and other jurisdictions
(1) This Act binds the State and, in so far as the legislative power of the
Parliament of New South Wales permits, the other States, the Territories
and the Commonwealth.
(2) Without limiting subsection (1), this Act has effect despite any privilege
or immunity of the Crown in any of its capacities.
(3) This Act does not make any State or Territory, the Commonwealth, or
the Crown in any of its capacities, liable to be prosecuted for an offence.
(4) A reference in this section to a State, Territory or the Commonwealth
includes a reference to the Government of the State, Territory or
Commonwealth.
22 General relationship of Act with other State legislation
(1) None of the following provisions operate to prevent, restrict or
otherwise limit the carrying out of the authorised transaction or the
exercise of a function for the purposes of the authorised transaction:
(a) any provision of the State Owned Corporations Act 1989 or the
Waste Recycling and Processing Corporation Act 2001,
(b) any provision of the constitution of WSN or a subsidiary of
WSN.
(2) In the event of any inconsistency between the provisions of this Act or
the regulations and a provision of any other State legislation that is
prescribed by the regulations as an inconsistent provision for the
purposes of this section, the provisions of this Act or the regulations (as
the case may be) prevail to the extent of the inconsistency.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010 Clause 23
Miscellaneous Part 4
23 Extraterritorial operation of Act
(1) It is the intention of the Parliament of New South Wales that the
operation of this Act should, as far as possible, include operation in
relation to the following:
(a) things situated in or outside the territorial limits of the State,
(b) acts, transactions and matters done, entered into or occurring in
or outside the territorial limits of the State,
(c) things, acts, transactions and matters (wherever situated, done,
entered into or occurring) that would, apart from this Act, be
governed or otherwise affected by the law of another State, a
Territory, the Commonwealth or a foreign country.
(2) Without limiting subsection (1), it is the intention of the Parliament of
New South Wales that the provisions of this Act have an operation in
relation to the things, acts, transactions and matters referred to in that
subsection even if the rules of private international law (whether at
general law or as provided by legislation) would require the application
of a law other than this Act instead of the provisions of this Act.
24 Construction of Act and instruments so as not to exceed legislative
power
(1) Unless a contrary intention appears, if a provision of this Act or an
instrument made under this Act:
(a) would, apart from this section, have an invalid application, but
(b) also has at least one valid application,
it is the intention of the Parliament of New South Wales that the
provision is not to have the invalid application, but is to have every valid
application.
(2) Despite subsection (1), the provision is not to have a particular valid
application if:
(a) apart from this section, it is clear, taking into account the
provision's context and the purposes or objects underlying this
Act, that the provision was intended to have that valid application
only if every invalid application, or a particular invalid
application, of the provision had also been within the legislative
power of the Parliament of New South Wales, or
(b) the provision's operation in relation to that valid application
would be different in a substantial respect from what would have
been its operation in relation to that valid application if every
invalid application, or a particular invalid application, of the
provision had been within the legislative power of the Parliament
of New South Wales.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 25 2010
Part 4 Miscellaneous
(3) Subsection (2) does not limit the cases in which a contrary intention
may be taken to appear for the purposes of subsection (1).
(4) This section is in addition to, and not in derogation of, section 31 of the
Interpretation Act 1987.
(5) In this section:
application means an application in relation to:
(a) one or more particular persons, things, matters, places,
circumstances or cases, or
(b) one or more classes (however defined or determined) of persons,
things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application
because of which the provision exceeds the legislative power of the
Parliament of New South Wales.
valid application, in relation to a provision, means an application
which, if it were the provision's only application, would be within the
legislative power of the Parliament of New South Wales.
25 Protection of contractual and other obligations
(1) This section applies to the following:
(a) the operation of this Act (including any order under this Act and
anything done or omitted to be done under or for the purposes of
this Act),
(b) the transfer of WSN assets for the purposes of the authorised
transaction,
(c) the entering into or performance of obligations under a
transaction arrangement by a public sector agency,
(d) a disclosure of information by, on behalf of or with the consent
of a public sector agency for the purposes of the authorised
transaction.
(2) None of the matters or things to which this section applies are to be
regarded as:
(a) a breach of contract or confidence or otherwise as a civil wrong,
or
(b) a breach of any instrument (including, without limitation, any
provision prohibiting, restricting or regulating the assignment or
transfer of assets, rights or liabilities) or as requiring any act to be
done under an instrument, or
(c) giving rise to any right or remedy by a party to a contract or other
instrument, or as causing or permitting the termination of, or
exercise of rights under, any contract or other instrument, or
Page 14
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010 Clause 26
Miscellaneous Part 4
(d) an event of default under any contract or other instrument, or
(e) giving rise to a breach of or an offence against a provision of an
Act that prohibits or restricts the disclosure of information, or
(f) releasing a surety or other obligee wholly or in part from an
obligation.
(3) This section does not affect the rights and obligations of the parties to a
transaction arrangement in respect of the performance of obligations
under the transaction arrangement.
(4) In this section:
instrument means an instrument (other than an instrument made under
this Act) or any other document that creates, modifies or extinguishes
rights or liabilities (or would do so if lodged, filed or registered in
accordance with any law), and includes any judgment, order, process or
other instrument issued by a court or tribunal.
26 Compensation not payable
(1) Compensation is not payable by or on behalf of the State:
(a) because of the enactment or operation of this Act, or for any
consequence of that enactment or operation, or
(b) because of any statement or conduct relating to the enactment of
this Act.
(2) This section does not extend to compensation payable under a
transaction arrangement to a party to the transaction arrangement in
connection with the performance of obligations under the transaction
arrangement.
(3) In this section:
compensation includes damages or any other form of monetary
compensation.
conduct includes any act or omission, whether unconscionable,
misleading, deceptive or otherwise.
operation of this Act includes the operation of any notice or order under
this Act and any agreement entered into under or for the purposes of this
Act.
statement includes a representation of any kind:
(a) whether made verbally or in writing, and
(b) whether negligent, false, misleading or otherwise.
the State means the Crown within the meaning of the Crown
Proceedings Act 1988, and includes a public sector agency and an
officer, employee or agent of the Crown or a public sector agency.
Page 15
Waste Recycling and Processing Corporation (Authorised Transaction) Bill
Clause 27 2010
Part 4 Miscellaneous
27 Certificate evidence
A certificate purporting to be signed by the Treasurer or an officer
prescribed by the regulations certifying that an order specified or
referred to in the certificate is an order made by the Treasurer under a
specified provision of this Act is admissible in evidence in any legal
proceedings and is evidence of the matters certified.
28 Regulations
The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
29 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of this Act.
(2) For the avoidance of doubt, any such provision may, if the regulations
so provide, have effect despite any specified provision of this Act.
(3) Any such provision may, if the regulations so provide, take effect from
the date of assent to this Act or a later date.
(4) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication on the NSW legislation website,
the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
30 Repeal of Waste Recycling and Processing Corporation Act 2001 No 59
The Waste Recycling and Processing Corporation Act 2001 is repealed.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010
Interpretative provisions Schedule 1
Schedule 1 Interpretative provisions
(Section 3)
1 Definitions
In this Act:
assets means any legal or equitable estate or interest (whether present or
future, whether vested or contingent and whether personal or
assignable) in real or personal property of any description (including
money), and includes securities, choses in action and documents.
authorised transaction--see section 3.
corporate conversion, in relation to WSN, means the registration of
WSN as a company under the Corporations Act.
Corporations Act means the Corporations Act 2001 of the
Commonwealth.
exercise a function includes perform a duty.
function includes a power, authority or duty.
general law means the common law and equity (as modified from time
to time by legislation).
legislation includes:
(a) any statute of a legislature (whether enacted or made in Australia
or elsewhere), and
(b) any proclamation, regulation, rule, by-law, order or any other
kind of subordinate legislation (however described) made under
the authority of a statute (whether enacted or made in Australia
or elsewhere).
liabilities means any liabilities, debts or obligations (whether present or
future, whether vested or contingent and whether personal or
assignable).
local authority means a council or county council under the Local
Government Act 1993 and includes a subsidiary of a council or county
council.
private sector means any person other than a public sector agency.
Note. A person who is a public sector agency of another jurisdiction is a private
sector person for the purposes of this Act.
public sector agency means any of the following:
(a) the State (including the Crown in right of the State),
(b) a Minister,
(c) WSN,
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
2010
Schedule 1 Interpretative provisions
(d) the Ministerial Holding Corporation constituted by the State
Owned Corporations Act 1989,
(e) the Waste Assets Management Corporation and any private
subsidiary corporation of the Corporation,
(f) a public authority of the State,
(g) a SOC,
(h) any other person acting on behalf of the State (or the Crown in
right of the State),
(i) a transaction company, but only while all the shares in the
transaction company are held by or on behalf of the State or a
SOC or the transaction company is a subsidiary of another
transaction company all the shares in which are held by or on
behalf of the State or a SOC.
rights means any rights, powers, privileges or immunities (whether
present or future, whether vested or contingent and whether personal or
assignable).
SOC means a State owned corporation within the meaning of the State
Owned Corporations Act 1989.
State legislation means any legislation of the State.
transaction arrangement means a transaction, agreement or other
arrangement entered into by a public sector agency for the purposes of
the authorised transaction.
transaction company means a company established as a transaction
company pursuant to this Act.
Waste Assets Management Corporation or the Corporation means the
Waste Assets Management Corporation constituted by section 16 of this
Act.
WSN--see section 3.
WSN assets--see section 3.
2 Functions for the purposes of the authorised transaction
For the purposes of this Act, any act, matter or thing is done or has effect
for the purposes of the authorised transaction if it is done or has effect
for the purpose of effecting or facilitating the authorised transaction or
is done or has effect for any purpose that is ancillary or incidental to or
consequential on the authorised transaction.
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Interpretative provisions Schedule 1
3 Transfer of WSN assets--interpretation
(1) When this Act authorises the transfer of WSN assets to the private
sector it is authorising any transaction, arrangement or other action that
results in WSN assets becoming vested in one or more persons in the
private sector.
(2) The following are examples of the ways in which WSN assets can be
transferred to the private sector:
(a) direct sale to the private sector,
(b) sale to the private sector of a transaction entity,
(c) any other transaction whereby any one or more persons in the
private sector becomes an owner of WSN assets.
(3) The transfer of WSN assets to the private sector does not require a
transfer of WSN assets by or from WSN and could, for example, be
effected by the corporate conversion of WSN (to establish a transaction
company) and the transfer of shares in the transaction company to the
private sector.
(4) In this clause:
entity includes a transaction company.
sale of an entity includes a sale of securities in the entity.
transaction entity means:
(a) an entity that holds WSN assets or into which WSN is converted,
or
(b) an entity that is the holding company of an entity referred to in
paragraph (a), or
(c) an entity that has control (within the meaning of the Corporations
Act) of an entity referred to in paragraph (a), or
(d) any other entity the sale of which to the private sector results in
WSN assets being vested in the private sector.
4 Words and expressions defined in Corporations Act
Words and expressions used in this Act that are defined in section 9 of
the Corporations Act have the same meanings as in that section, except
in so far as they are defined differently in this Act or the context or
subject-matter otherwise indicates or requires.
5 Notes
Notes included in this Act do not form part of this Act.
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Schedule 2 Corporate conversion of WSN
Schedule 2 Corporate conversion of WSN
(Section 10)
1 Direction for corporate conversion of WSN
The Treasurer may direct by order in writing (a corporate conversion
direction) that WSN be converted into a company limited by shares of
a specified type.
2 Application for conversion to company
(1) If a corporate conversion direction is given, WSN is authorised to apply
to be registered under Part 5B.1 of the Corporations Act as a company
limited by shares of the type specified in the direction.
(2) The Treasurer can certify that the provisions of this Act have been
complied with concerning the transfer of the incorporation of WSN to
the Corporations Act, and such a certificate is conclusive evidence in
any proceedings before a court or tribunal that all the requirements of
this Act have been complied with concerning the transfer of the
incorporation of WSN to the Corporations Act.
(3) The Treasurer's certificate under this clause cannot be challenged,
reviewed or called into question in proceedings before any court or
tribunal.
3 Effect of conversion
(1) The following provisions are taken to have had effect immediately
before WSN is registered as a company under the Corporations Act:
(a) WSN ceases to be a statutory State owned corporation for the
purposes of the State Owned Corporations Act 1989 or any other
State legislation,
(b) the voting shareholders (within the meaning of the State Owned
Corporations Act 1989) of WSN cease to be members of the
corporation,
(c) the board of directors of WSN is dissolved and each member
(including any acting member) of the board ceases to hold office
as such,
(d) any person who holds a statutory office of WSN ceases to hold
that office, subject to Schedule 4 (Employee protections),
(e) any person who ceases to be a member of WSN or to hold an
office because of the operation of this subclause is not entitled to
any compensation for the loss of that membership or office.
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Corporate conversion of WSN Schedule 2
(2) Nothing in this clause prevents any person from becoming an officer of
the company into which WSN is being converted in accordance with its
constitution and the provisions of the Corporations Act.
(3) WSN becomes a transaction company for the purposes of this Act only
when it is registered as a company under the Corporations Act.
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Schedule 3 Vesting of assets, rights and liabilities
Schedule 3 Vesting of assets, rights and liabilities
(Section 14)
1 Definitions
In this Schedule:
transferee means the person or body in whom any assets, rights or
liabilities are vested by a vesting order.
transferor means the person or body from whom any assets, rights or
liabilities are divested by a vesting order.
vesting order--see clause 2.
2 Making of vesting order
The Treasurer may, by order (a vesting order), vest assets, rights and
liabilities of WSN or a transaction company in a person specified in the
order as the transferee.
3 Vesting of assets, rights and liabilities in transferee
(1) When any assets, rights or liabilities are vested by a vesting order, the
following provisions have effect (subject to the vesting order):
(a) the assets vest in the transferee by virtue of this clause and
without the need for any conveyance, transfer, assignment or
assurance,
(b) the rights and liabilities become, by virtue of this clause, the
rights and liabilities of the transferee,
(c) all proceedings relating to the assets, rights or liabilities pending
by or against the transferor are taken to be proceedings pending
by or against the transferee,
(d) any act, matter or thing done or omitted to be done in relation to
the assets, rights or liabilities by, to or in respect of the transferor
is (to the extent that the act, matter or thing has any force or
effect) taken to have been done or omitted by, to or in respect of
the transferee,
(e) the transferee has all the entitlements and obligations of the
transferor in relation to those assets, rights and liabilities that the
transferor would have had but for the order, whether or not those
entitlements and obligations were actual or potential at the time
the order took effect,
(f) a reference in any Act, in any instrument made under any Act or
in any document of any kind to the transferor or a predecessor of
the transferor is (to the extent that it relates to those assets or
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Vesting of assets, rights and liabilities Schedule 3
liabilities but subject to the regulations), to be read as, or as
including, a reference to the transferee.
(2) No attornment to the transferee by a lessee from the transferor is
required.
4 Terms and conditions of vesting
A vesting order may be made on such terms and conditions as are
specified in the order.
5 Consideration for vesting
A vesting order may specify the consideration for which a vesting to
which it applies is made and the value or values at which assets, rights
or liabilities are vested.
6 Date of vesting
A vesting order takes effect on the date it is made or on such other date
as may be specified in the order.
7 Vesting of interests in land
(1) A vesting order may vest an interest in respect of land vested in the
transferor without vesting the whole of the interests of the transferor in
that land.
(2) If the interest vested is not a separate interest, the order operates to
create the interest vested in such terms as are specified in the order.
(3) This clause does not limit any other provision of this Schedule.
8 Confirmation of vesting
(1) The Treasurer may by order in writing confirm a vesting of particular
assets, rights or liabilities by operation of this Schedule.
(2) Such an order is evidence of that vesting.
9 Determinations by Treasurer
For the purposes of the making of a vesting order, the Treasurer may
determine whether or not particular assets, rights or liabilities comprise
assets, rights or liabilities of WSN, a transaction company or the
Corporation at a particular time, and such a determination is conclusive
as to the matters determined.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Schedule 3 Vesting of assets, rights and liabilities
10 Certification to registration authorities
(1) In this clause:
registration authority means a person or body that has functions under
any law in connection with the keeping of a register in respect of assets,
rights or liabilities.
(2) A public sector agency that is the transferee or transferor under a vesting
order may lodge with a registration authority a certificate certifying as
to such information as may reasonably be required by the registration
authority to enable the registration authority to exercise any function of
the authority arising in connection with the vesting of any asset, right or
liability pursuant to the vesting order.
(3) Such a certificate is to be accepted and acted upon by the registration
authority and, despite any other law, the registration authority is not
entitled to require that the information concerned be provided to it in
any particular form or in any particular manner.
(4) No fee or charge is payable by the transferee to a registration authority
for or in respect of the exercise of any function by the registration
authority in connection with the vesting of an asset, right or liability by
a vesting order.
11 Evidence of orders and certificates
A document purporting to be a vesting order or an order or certificate
given under a provision of this Schedule is, unless the contrary is
established, taken to be such an order or certificate and to have been
properly made or given.
12 Public sector accounting policies
The Treasurer may give directions to public sector agencies for or with
respect to accounting policies to be applied by public sector agencies in
connection with the transfer between public sector agencies of assets,
rights and liabilities of WSN or a transaction company for the purposes
of the authorised transaction (in place of public sector accounting
policies that would otherwise be applicable in respect of any such
transfer).
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Employee protections Schedule 4
Schedule 4 Employee protections
(Section 15)
1 Definitions
(1) In this Schedule:
casual employee means an employee of WSN whose employment is in
a category of employment that is described in or classified under a
relevant award as casual employment or who is otherwise engaged as a
casual employee.
contract employee means an employee of WSN whose terms and
conditions of employment are provided by an individual contract and
not by a relevant award.
permanent employee means an employee of WSN whose employment
is of indefinite duration and who is not a casual employee, temporary
employee or contract employee.
relevant award means any award, agreement or other industrial
instrument (under a law of the State or the Commonwealth) that
provides for the terms and conditions of employment of employees of
WSN.
temporary employee means an employee of WSN (other than a casual
employee or contract employee) whose employment is in a category of
employment that is described in or classified under a relevant award as
temporary employment or whose employment is, under the terms of his
or her employment, for a limited period.
transaction completion means the day certified by the Treasurer by
order in writing as the day on which the authorised transaction is
completed.
transferred employee means an employee of WSN whose employment
is transferred under this Schedule.
(2) A transaction company is considered to be an employer in the private
sector for the purposes of this Schedule even while it is a public sector
agency.
2 Transfer of employees
(1) The Treasurer may by order in writing transfer the employment of an
employee of WSN to the employment of an employer in the private
sector or to employment in a Department of the Public Service.
(2) A transfer to employment in a Department of the Public Service must
be either:
(a) a transfer to employment as a member of staff of the Waste
Assets Management Corporation (which means employment in
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Schedule 4 Employee protections
the Department for the purpose of enabling the Corporation to
exercise its functions), or
(b) a transfer to employment as an excess employee of the
Department.
(3) A permanent employee or temporary employee can decline to be
transferred to employment in the private sector.
Note. Casual and contract employees cannot decline a transfer to the private
sector.
(4) An employee's employment cannot be transferred to employment as an
excess employee of a Department unless the employee is a permanent
employee or temporary employee who has declined to be transferred to
employment in the private sector.
(5) The employer to whose employment an employee is transferred under
this Schedule is the new employer.
3 Employment protection for employees transferred to private sector
(1) The employment of a transferred employee with the new employer in
the private sector is to be on the same terms and conditions as applied
to the employee as an employee of WSN immediately before the
transfer of employment.
(2) Those terms and conditions cannot be varied during any employment
guarantee period for the transferred employee except by agreement
entered into by or on behalf of the transferred employee.
(3) The employment of a transferred employee with the new employer
cannot be terminated by the new employer during the employment
guarantee period, except:
(a) for serious misconduct, or
(b) pursuant to the proper application of reasonable disciplinary
procedures, or
(c) by agreement with the employee.
(4) There is an employment guarantee period for transferred employees
who are permanent or temporary employees, as follows:
(a) for permanent employees the employment guarantee period is
3 years after the transaction completion,
(b) for temporary employees the employment guarantee period is the
remainder of the employee's current term of employment (as
specified in the arrangements under which the employee was
engaged as a temporary employee) immediately before the
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Employee protections Schedule 4
transaction completion or the period of 3 years after the
transaction completion, whichever period ends first.
Note. There is no employment guarantee period for contract employees or
casual employees. The employment of a transferred employee who is a
contract employee remains governed by the contract of employment.
4 Employment protection for employees transferred to Public Service
(1) The employment of a person who is transferred to a Department of the
Public Service under this Schedule is to be on the same terms and
conditions as applied to the employee as an employee of WSN
immediately before the transfer, subject to this clause.
(2) The employment of a transferred employee as an excess employee of
the Department is to be managed in accordance with any relevant public
sector policy (an excess employee policy) applicable to excess
employees of Departments, and for that purpose the employee is to be
treated as an employee declared excess by the Department to which the
employee is transferred on the basis that the employee's substantive
position in the Department has been deleted.
(3) The terms and conditions of employment of the transferred employee
cannot be varied for 12 months after the employee becomes an
employee of the new employer except by agreement with the employee
or (in the case of employment as an excess employee of a Department)
in accordance with an excess employee policy.
(4) This clause does not operate to extend the period of engagement of a
temporary employee of WSN. A transferred employee who was a
temporary employee of WSN immediately before the transfer is not
entitled to employment as a transferred employee beyond the finishing
date of the person's employment as a temporary employee of WSN (as
specified in the arrangements under which the employee was engaged
as a temporary employee).
5 Superannuation
(1) A transferred employee is entitled to continue as a contributor, member
or employee for the purposes of any superannuation scheme in respect
of which he or she was a contributor, member or employee (as an
employee of WSN) immediately before the transfer of employment and
remains so entitled subject to any variation to that entitlement made
either by agreement or otherwise in accordance with law.
(2) The new employer is taken to be an employer for the purposes of any
superannuation scheme in respect of which the transferred employee
continues as a contributor, member or employee pursuant to an
entitlement under this clause.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Schedule 4 Employee protections
6 Continuity of employment
The continuity of a transferred employee's employment is taken not to
have been broken by the transfer of employment, and service of the
employee with WSN (including service deemed to be service with
WSN) that is continuous service up to the time of transfer is deemed for
all purposes to be service with the new employer.
7 Accrued leave entitlements
(1) A transferred employee retains any rights to sick leave, annual leave or
long service leave accrued or accruing immediately before the transfer
of employment (except accrued leave for which the employee has, on
ceasing to be an employee of WSN, been paid the monetary value in
pursuance of any other entitlement of the employee).
(2) Nothing in the Industrial Relations Act 1996, the Long Service Leave
Act 1955 or the Annual Holidays Act 1944 prevents payment in
connection with the operation of this Act of the monetary value of
annual leave or long service leave in lieu of an entitlement to that leave
accrued by a person as an employee of a public sector agency before the
transfer of the employee's employment under this Schedule.
8 Transfer payments
(1) A transferred employee is not entitled to receive any payment or other
benefit (including in the nature of severance pay or redundancy or other
compensation) merely because the employee ceased to be an employee
of WSN, or the employee's contract of employment with WSN was
terminated, as a result of the transfer of employment (but without
affecting any entitlement to a transfer payment under this clause).
(2) The Treasurer or another public sector agency may enter into
agreements or other arrangements with respect to the making of transfer
payments to employees in connection with the transfer of employment
of employees under this Schedule or otherwise in connection with the
operation of this Act.
(3) Any such arrangements may provide for the payment of any such
transfer payments to be payments on the occasion of the termination of
employment with the current employer despite any provision of this
Schedule.
9 Workplace relations
The Treasurer may negotiate and enter into agreements or industrial
instruments concerning workplace relations for or on behalf of the State
or a public sector agency in connection with the operation of this
Schedule.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Employee protections Schedule 4
10 Operation of Commonwealth law
(1) A provision of this Schedule (including a provision to the extent that it
imposes or continues a term or condition of employment) has no effect
to the extent of any inconsistency with any provision of the Fair Work
Act 2009 of the Commonwealth or of any instrument under that Act.
(2) This clause is not intended to limit the operation of section 24
(Construction of Act and instruments so as not to exceed legislative
power) of this Act.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Schedule 5 Waste Assets Management Corporation
Schedule 5 Waste Assets Management Corporation
(Section 16)
1 General Manager
(1) The General Manager of the Corporation is the person holding office as
such under Chapter 1A of the Public Sector Employment and
Management Act 2002.
(2) The General Manager is responsible for the day-to-day management of
the affairs of the Corporation and any act, matter or thing done in the
name of, or on behalf of, the General Manager is taken to have been
done by the Corporation.
2 Staff
The Corporation cannot employ any staff.
Note. Staff may be employed under Chapter 1A of the Public Sector
Employment and Management Act 2002 in the Government Service to enable
the Corporation to exercise its functions.
3 Subsidiaries
(1) Any function of the Corporation may be exercised by the Corporation
itself or by a private subsidiary corporation.
(2) The Corporation may:
(a) form, or participate in the formation of, private corporations, and
(b) acquire interests in private corporations, and
(c) sell or otherwise dispose of interests in private corporations.
(3) The Corporation must not, without the approval of the Treasurer:
(a) form, or participate in the formation of, a private subsidiary
corporation, or
(b) acquire an interest in a private corporation so that, as a result of
the acquisition, the corporation becomes a private subsidiary
corporation, or
(c) sell or otherwise dispose of any interest in a private subsidiary
corporation so that, as a result of the sale or disposal, it ceases to
be a private subsidiary corporation.
(4) A private subsidiary corporation is not, and does not represent, the
Crown.
(5) In this Schedule:
private corporation means a corporation within the meaning of the
Corporations Act formed in or outside New South Wales.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Waste Assets Management Corporation Schedule 5
private subsidiary corporation means a private corporation in which
the Corporation has a controlling interest.
4 Delegation of Corporation's functions
(1) The Corporation may delegate to an authorised person any of its
functions, other than this power of delegation.
(2) A delegate may sub-delegate to an authorised person any function
delegated by the Corporation if the delegate is authorised in writing to
do so by the Corporation.
(3) In this clause, authorised person means:
(a) a member of staff of the Corporation, or
(b) a private subsidiary corporation of the Corporation, or
(c) the holder of an office prescribed by the regulations.
5 Transfer of Corporation's assets, rights and liabilities
(1) This Act authorises the transfer of any assets, rights and liabilities of the
Corporation (or a private subsidiary corporation of the Corporation) to
any of the following:
(a) a public sector agency,
(b) a local authority,
(c) a private subsidiary corporation of the Corporation.
(2) The Treasurer may make vesting orders under Schedule 3 for the
purpose of transferring any assets, rights or liabilities of the Corporation
or a private subsidiary corporation under this clause, as if the
Corporation or private subsidiary corporation were a transaction
company.
6 Annual report
The annual report of the Corporation is to be included in the annual
report to Parliament of the Treasury or of such other Department of the
Public Service as the Treasurer may designate from time to time.
7 Seal of Corporation
The seal of the Corporation is to be kept by the General Manager, or by
a member of the staff of the Corporation authorised in that behalf by the
General Manager, and may be affixed to a document only:
(a) in the presence of the General Manager or that member of the
staff, and
(b) with an attestation by the signature of the General Manager or
that member of staff of the fact of the affixing of the seal.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Schedule 5 Waste Assets Management Corporation
8 Dissolution of Corporation
(1) The Governor may by proclamation appoint a day as the day on which
the Corporation is to be dissolved.
(2) On the appointed day, the Corporation is dissolved and any assets,
rights and liabilities of the Corporation become assets, rights and
liabilities of the Crown.
(3) Schedule 3 applies to the assets, rights and liabilities vested in the
Crown under this clause as if they had been vested by a vesting order
under that Schedule.
(4) Regulations of a savings and transitional nature may be made
consequent on the dissolution of the Corporation.
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Waste Recycling and Processing Corporation (Authorised Transaction) Bill
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Amendment of Acts Schedule 6
Schedule 6 Amendment of Acts
6.1 Public Finance and Audit Act 1983 No 152
Schedule 2 Statutory bodies
Insert in alphabetical order:
Waste Assets Management Corporation
6.2 State Owned Corporations Act 1989 No 134
Schedule 5 Statutory SOCs
Omit "Waste Recycling and Processing Corporation".
6.3 Subordinate Legislation Act 1989 No 146
Schedule 4 Excluded instruments
Insert at the end of the Schedule (with appropriate item numbering):
Regulations under the Waste Recycling and Processing
Corporation (Authorised Transaction) Act 2010.
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