New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 128C)
(1) In this Schedule:
"ASIC" means the Australian Securities and Investments Commission.
"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.
"Corporations Act" means the Corporations Act 2001 of the Commonwealth.
"Corporations legislation" means the Corporations legislation to which Part 1.1A of the Corporations Act applies.
"FTC" means the FSS Trustee Corporation that was originally established by this Act.
"FTC Board" means the board of FTC as constituted under this Act at the relevant time.
"instrument" means an instrument (other than this Act or 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.Note: Section 21 (1) of the Interpretation Act 1987 provides that a reference in an Act to "document" means any record of information, and includes:"liabilities" means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable).(a) anything on which there is writing, or(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or(d) a map, plan, drawing or photograph.
"registered FTC" means FTC on or after the registration day.
"registration day" means the day specified by the Minister in a registration order as the day on which FTC is to be taken to be registered as a proprietary company limited by shares for the purposes of section 5H of the Corporations Act.
"registration order" means an order made by the Minister under clause 4 specifying a registration day.
"rights" means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).
"transition period" means the period commencing at the beginning of the registration day and ending at the end of the day that is the third anniversary of the registration day.
(2) Words and expressions used in this Schedule have the same meanings as in section 9 of the Corporations Act, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires.
(3) If this Schedule provides for an event or other thing to occur on a particular day, that event or thing is taken to occur at the beginning of that day.
(4) This Schedule is intended to have extraterritorial application in so far as the legislative powers of the Parliament of the State permit.
(1) The following is a summary of the steps involved in the conversion of FTC into a proprietary company limited by shares under the Corporations Act:The FTC Board passes resolutions in accordance with Division 2 of Part 3 that approve a constitution for registered FTC and the issue of shares in registered FTC.The FTC Board, with the approval of the Minister, causes a notice to be lodged with ASIC under section 5H (2) of the Corporations Act that sets out certain information about the proposed conversion of FTC into a registered company.The Minister makes a registration order under clause 4 specifying the day on which FTC is taken to be registered as a proprietary company limited by shares under section 5H of the Corporations Act.Section 5H of the Corporations Act operates on the registration day to register FTC as a proprietary company limited by shares with the name “FSS Trustee Corporation”.
(2) This clause does not affect the meaning or interpretation of any provision of this Schedule that it summarises.
(1) FTC is a deemed registration company for the purposes of section 5H of the Corporations Act.
(2) For the purposes of that section:(a) the day on which FTC is to be taken to be registered as a company is the registration day, and(b) the type of company that FTC is to be registered as is a proprietary company limited by shares, and(c) the company’s proposed name is “FSS Trustee Corporation”.
Section 5H of the Corporations Act provides that a body is taken to be registered under that Act as a company of a particular type under section 118 of that Act if a law of a State or Territory to which the Act applies:(a) provides that the body is a deemed registration company for the purposes of the section, and(b) specifies:and if section 5H (2) and (3) (relating to the lodgment of certain notices and documents with ASIC) are satisfied.(i) the day on which the body is to be taken to be registered (the registration day) or the manner in which that day is to be fixed, and(ii) the type of company the body is to be registered as under the Act, and(iii) the company’s proposed name (unless the ACN is to be used in its name),
(1) The Minister may, by order published in the Gazette, specify a day on which FTC is to be taken to be registered as a proprietary company limited by shares for the purposes of section 5H of the Corporations Act.
(2) The Minister may make an order under subclause (1) only if the Minister is satisfied that:(a) the FTC Board has approved a constitution for registered FTC in accordance with the provisions of this Part, and(b) the FTC Board has approved persons to be members of registered FTC and the shares to be issued to those persons in accordance with the provisions of this Part, and(c) FTC has complied with section 5H (2) of the Corporations Act.
(3) The Minister is to provide ASIC with a copy of an order made under this clause as soon as practicable after it is issued to FTC. However, a failure to provide such a copy does not affect the validity of the order.
(4) An order under this clause cannot be challenged, reviewed or called into question in proceedings before any court or tribunal.
(5) An order under this clause is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Schedule have been complied with concerning the registration of FTC under the Corporations Act as a proprietary company limited by shares.
Note: For the order under this clause see Gazette No 49 of 7.4.2006, p 2032.
(1) The FTC Board may, by a resolution that is duly passed at a meeting of the Board, approve a constitution for FTC to take effect on its registration as a proprietary company limited by shares under the Corporations Act.
(2) A constitution for registered FTC approved by the FTC Board may contain only such matter that could be included in the constitution of a proprietary company limited by shares under the Corporations Act.
(3) The FTC Board may, by a further resolution that is duly passed at a meeting of the Board, revoke a resolution approving a constitution for registered FTC at any time before the registration day.
(4) However, nothing in subclause (3) prevents the FTC Board from subsequently approving the same or another constitution under subclause (1).
(1) The FTC Board may, by one or more resolutions that are duly passed at a meeting of the Board, approve:(a) the number and classes of shares that are to be issued in respect of registered FTC on its registration as a proprietary company limited by shares under the Corporations Act, and(b) the persons to whom the shares are to be issued, and(c) the amounts that are payable for shares to be issued in registered FTC and whether or not the amounts must be paid in full by the registration day.
(2) The FTC Board may, by a further resolution that is duly passed at a meeting of the Board, revoke a resolution under subclause (1) at any time before the registration day.
(3) However, nothing in subclause (2) prevents the FTC Board from passing the same or another resolution under subclause (1).
The FTC Board may cause the notice referred to in section 5H (2) of the Corporations Act to be lodged with ASIC before the registration day if:
(a) the Board has approved a constitution for registered FTC in accordance with the provisions of this Part, and
(b) the Board has approved the issue of shares in registered FTC in accordance with the provisions of this Part, and
(c) the Minister has consented in writing to the lodgment of the notice.
Note: Certain consents and agreements will be required to be obtained before the notice referred to in section 5H (2) of the Corporations Act is lodged. That provision requires the notice to contain the names and addresses of persons who consent to be members and the number and class of shares the member agrees in writing to take up. On registration, the shares specified in the notice are, under the Corporations Act, taken to be issued to the members specified in the notice.
(1) Registered FTC is taken for all purposes (including the rules of private international law) to be a continuation of, and the same legal entity, as FTC.
(2) Without limiting subclause (1), the registration of FTC as a proprietary company limited by shares under the Corporations Act does not:(a) create a new legal entity, or(b) affect FTC’s existing assets, rights or liabilities (except as against the members of FTC in their capacity as members), or(c) render defective any legal proceedings by or against FTC or its members, or(d) affect the employment, or entitlements as an employee, of a person who was a member of staff of FTC immediately before the registration day.
(3) Subclauses (1) and (2) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.Note: Section 5G (11) of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.
(4) A reference in any instrument to FTC is to be read on and after the registration day as including a reference to registered FTC.
(1) Registered FTC is authorised to use the name “FSS Trustee Corporation” as its corporate name without the words “Pty Limited” being included in that name.
(2) Nothing in subclause (1) prevents registered FTC from changing its name in accordance with the provisions of the Corporations Act to include the words “Pty Limited” in its name.
(3) Subclause (1) has effect only for so long as registered FTC retains the name “FSS Trustee Corporation”.
(4) Subclause (1) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to the provisions of Part 2B.6 of that Act.
Section 5G (6) of the Corporations Act provides that the provisions of Part 2B.6 and Part 5B.3 of that Act (which relate to the use of names) do not:(a) prohibit a company or other body from using a name if the use of the name is expressly provided for, or authorised by, a provision of a law of a State or Territory, or(b) require a company or other body to use a word as part of its name if the company or body is expressly authorised not to use that word by a provision of a law of a State or Territory.However, section 5G (3) of that Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section.
(1) Any alteration to the constitution of registered FTC during the transition period with respect to the number, manner of appointment or manner of removal of directors of the company does not have effect unless the Minister consents in writing to the alteration.
(2) The Minister:(a) must consent to any alteration to the constitution required for compliance with the Superannuation Industry (Supervision) Act 1993 of the Commonwealth or any regulations or other instruments made under that Act, and(b) may not consent to any alteration that would be inconsistent with that Act, those regulations or any such instrument.
(3) Subclause (1) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.Note: Section 5G (10) of the Corporations Act provides that if a provision of a law of a State or Territory provides that additional requirements must be met for an alteration of a company’s constitution to take effect, the alteration does not take effect unless those requirements are met.
(1) The provisions of the Public Finance and Audit Act 1983 (the "Audit Act") cease to apply in relation to registered FTC on the registration day, except as provided by this clause.
(2) Subject to such modifications as may be prescribed by the regulations, the following provisions of Part 3 (Audit) of the Audit Act apply as specified in relation to registered FTC for the first 3 financial years in which the transition period occurs:(a) Division 2A (Performance audits of activities) applies as if:(i) a reference in that Division to an authority included a reference to registered FTC, and(ii) a reference in that Division to the responsible Minister in relation to registered FTC was a reference to the Minister administering this clause,(b) Division 4 (Particular audit of statutory bodies, funds and accounts) applies as if:(i) a reference in that Division to a statutory body included a reference to registered FTC, and(ii) a reference in that Division to the responsible Minister in relation to registered FTC was a reference to the Minister administering this clause, and(iii) the Minister administering this clause had requested that the Auditor-General carry out functions under that Division in respect of the First State Superannuation Fund for each of those financial years,(c) Division 2 (Audit-generally) applies to an inspection or audit conducted under a provision of the Audit Act applied by paragraph (a) or (b) in the same way as it applies to any other inspection or audit to which that Division applies under that Act.
(3) To avoid doubt, section 43A of the Audit Act does not apply in respect of the removal of registered FTC from the application of the Audit Act as a consequence of the operation of any provision of the First State Superannuation Legislation Amendment (Conversion) Act 2005 .
(4) The Auditor-General may, if engaged to do so by registered FTC, carry out auditing functions for FTC (including in respect of the First State Superannuation Fund) at any time during or after the financial years in which the transition period occurs.
(5) Subclauses (1) and (2) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.Note: Section 5G (11) of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.
(6) In this clause:
"modification" includes addition, exception, omission or substitution.
(1) Immediately before the registration day:(a) FTC ceases to be a statutory body representing the Crown, and(b) the FTC Board is dissolved and each member (including any acting member) of the Board ceases to hold office as such, and(c) the chief executive officer (or an acting chief executive officer) of FTC ceases to hold office and the provisions of the Public Sector Employment and Management Act 2002 cease to apply to his or her employment.
(2) On and from the registration day:(a) except as provided by paragraph (b), the following provisions of this Act cease to apply in relation to registered FTC:(i) Divisions 1, 4 and 5 of Part 2,(ii) sections 17 and 18,(iii) Division 6 (other than section 40) of Part 2,(iv) Schedule 1, and(b) section 7 (1), as in force immediately before the registration day, is taken to continue to apply to registered FTC even if it is repealed, but only to the extent necessary to support the continued operation of clause 3.
(3) Any person who ceases to hold an office by reason of the operation of subclause (1) is not entitled to any compensation for the loss of that office.
(4) However, nothing in subclause (1) prevents any person from becoming an officer of registered FTC on and from the registration day in accordance with the provisions of its constitution.
(5) Nothing in this clause operates to limit the generality of the provisions of clause 8.