New South Wales Consolidated Acts

AGL CORPORATE CONVERSION ACT 2002 - SECT 26

26 Application of Corporations legislation concerning companies to corporatised AGL

(1) Application of section This section applies certain provisions of the Corporations legislation relating to companies to corporatised AGL as a matter of State law. These provisions will not extend to corporatised AGL as a law of the Commonwealth until corporatised AGL is registered as a company under the Corporations Act 2001 of the Commonwealth.

(2) Application of non-applicable provisions of Corporations legislation Subject to this Act, corporatised AGL is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the non-applicable Commonwealth provisions, subject to the following modifications:

(a) the non-applicable Commonwealth provisions apply to corporatised AGL as if it were a public company limited by shares,

(b) the constitution of corporatised AGL on the conversion day is the constitution approved by the conversion resolution,

(c) the members, share capital and shareholders of corporatised AGL on the conversion day are as provided by section 18 and Schedule 4,

(d) the auditor of corporatised AGL referred to in section 23 is taken to have been duly appointed at a general meeting of the members of corporatised AGL as its auditor on the conversion day for the purposes of section 327 of the Corporations Act 2001 of the Commonwealth,

(e) the financial position and financial reports of corporatised AGL on the conversion day are taken to be as specified in section 22,

(f) a benefit given to a person holding a board or managerial office in corporatised AGL on or after the conversion day in accordance with the terms of a preserved resolution is taken to be a benefit that has been approved under section 200E of the Corporations Act 2001 of the Commonwealth for the purposes of Division 2 of Part 2D.2 of that Act,

(g) any remuneration that is paid to a director of corporatised AGL on or after the conversion day in accordance with the terms of a preserved resolution is taken to have been determined by resolution of corporatised AGL for the purposes of section 202A of the Corporations Act 2001 of the Commonwealth (or any provision of the constitution of corporatised AGL dealing with the remuneration of directors),

(h) any financial assistance to acquire shares in corporatised AGL that is given by corporatised AGL on or after the conversion day in accordance with the terms of a preserved resolution is taken to be assistance that has been approved under section 260B of the Corporations Act 2001 of the Commonwealth,

(i) without limiting paragraph (h)-an employee share scheme approved by a preserved resolution is taken to be a scheme that has been duly approved for the purposes of section 260C (4) of the Corporations Act 2001 of the Commonwealth,

(j) AGL is not required to use the word “Limited” in its name despite anything to the contrary in Part 2B.6 of the Corporations Act 2001 of the Commonwealth,

(k) the non-applicable Commonwealth provisions have effect subject to the provisions of the Gas Industry Restructuring Act 1986 relating to corporatised AGL,

(l) such other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001 ) as may be prescribed by the regulations.

Note: Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions.
Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.

(3) Conferral of functions on ASIC The regulations may provide for ASIC to exercise a function under any provision of the Corporations legislation that is the subject of the declaration under subsection (2), but only if:

(a) ASIC is to exercise that function pursuant to an agreement of the kind referred to in section 11 (8) or (9A) (b) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth, and

(b) ASIC is authorised to exercise that function under section 11 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth.

(4) Effect of regulation under subsection (3) Section 17 of the Corporations (Ancillary Provisions) Act 2001 has effect in relation to a regulation under subsection (3) as if subsection (2) had expressly made provision for ASIC to exercise the functions concerned.

(5) When section ceases to apply Subsections (1)-(4) cease to apply to corporatised AGL on the registration day. However, nothing in this subsection affects the previous operation of this section in relation to corporatised AGL.

(6) Definitions In this section:
"benefit" means a benefit for the purposes of Division 2 of Part 2D.2 of the Corporations Act 2001 of the Commonwealth.
"financial assistance" means financial assistance for the purposes of Part 2J.3 of the Corporations Act 2001 of the Commonwealth.
"non-applicable Commonwealth provisions" means provisions of the Corporations legislation that would apply to corporatised AGL or any other matter as a law of the Commonwealth if corporatised AGL were registered as a public company limited by shares under the Corporations Act 2001 of the Commonwealth.