Electricity Generator Assets (Authorised Transactions) Act 2012

This Act is the Electricity Generator Assets (Authorised Transactions) Act 2012.

This Act commences on the date of assent, except as provided by subsection (2).

Schedule 5 (Ownership restrictions in floated transaction companies) commences on a day to be appointed by proclamation.

In this Act—

authorised transaction means a transfer of electricity generator assets authorised by Part 2.

electricity generator means a statutory State owned corporation constituted by the Energy Services Corporations Act 1995 as an electricity generator under that Act.

electricity generator assets means assets, rights and liabilities of an electricity generator.

Note.

Schedule 1 contains other interpretative provisions.

This Act authorises the transfer of electricity generator assets to the private sector.

This Act authorises the transfer of electricity generator assets between public sector agencies.

The proceeds of the transfer of electricity generator assets pursuant to an authorised transaction (the transaction proceeds) belong to and are payable directly to the State.

The transaction proceeds paid to the State are to be paid into the Restart NSW Fund (the Fund) established under the Restart NSW Fund Act 2011.

The following deductions are authorised to be made from the transaction proceeds—

deduction of such amounts as the Treasurer approves to repay debt and satisfy other liabilities of a public sector agency in respect of electricity generator assets transferred for the purposes of an authorised transaction,

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,

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,

deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of an authorised transaction.

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.

The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Fund or may be made by payment from the Fund.

The requirements of this section do not affect the validity of a transaction arrangement.

The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of an 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.

A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of an authorised transaction.

The Governor may by order published in the Gazette—

create a corporation under a corporate name specified in the order, and

specify the functions of the corporation, and

direct that the corporation is established as a statutory State owned corporation and as a transaction SOC.

On the day on which the order takes effect—

a corporation is constituted with the corporate name and functions specified in the order, and

the State Owned Corporations Act 1989 is amended by inserting in Schedule 5 the corporate name specified in the order (to establish the corporation as a statutory State owned corporation under that Act), and

the State owned corporation thereby established is a transaction SOC for the purposes of this Act.

The portfolio Minister of a SOC established under this section is the Minister administering section 13 (Creation of additional energy services corporations) of the Energy Services Corporations Act 1995.

Schedule 2 has effect with respect to a transaction SOC. The provisions of that Schedule are in addition to and (except to the extent to which that Schedule otherwise provides) do not derogate from the provisions of the State Owned Corporations Act 1989.

The Treasurer may for the purposes of an authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways—

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),

the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company,

the conversion of an electricity generator or transaction SOC into a company limited by shares as provided by Schedule 3.

A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company.

Except by express agreement with the Treasurer—

a transaction company is not and does not represent the State, and

the debts, liabilities and obligations of a transaction company are not guaranteed by the State.

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, a SOC or transaction company as the holder of shares or other securities in a transaction company.

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. 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.

An electricity generator that becomes a transaction company remains an electricity generator for the purposes of this Act (despite ceasing to be a statutory State owned corporation constituted by the Energy Services Corporations Act 1995).

Each electricity generator and transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of an authorised transaction.

The functions conferred by this section are in addition to any other functions that an electricity generator or transaction entity 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.

The Treasurer may act for or on behalf of an electricity generator or transaction entity in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.

Each electricity generator and transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of an authorised transaction while it is a public sector agency.

The Treasurer may give directions for the purposes of an authorised transaction to an electricity generator or transaction entity, and to the directors and other officers of an electricity generator or transaction entity. Any such directions must be complied with by the electricity generator, the transaction entity or the directors or other officers concerned.

Directions to a transaction entity (or its directors and other officers) can only be given and are only required to be complied with while the transaction entity is a public sector agency.

The power to give directions under this section extends to directions with respect to the way in which an electricity generator or transaction entity is to conduct its business and other affairs.

Action taken by an electricity generator or transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation.

Anything done or omitted to be done by a director or other officer of an electricity generator or transaction entity 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.

The provisions of this section 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.

There is constituted by this Act a corporation with the corporate name of the Electricity Assets Ministerial Holding Corporation.

The affairs of the Corporation are to be managed by the Treasurer who may authorise another Minister to exercise functions in relation to particular assets, rights and liabilities.

Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Treasurer or a Minister authorised by the Treasurer, or with the authority of the Treasurer or any such Minister, is taken to have been done by the Corporation.

The Corporation has the functions conferred or imposed on it by or under this or any other Act.

The functions of the Corporation are—

to hold, on behalf of the Crown, electricity generator assets acquired by it or transferred to it by or under this or any other Act, and

to carry on any activities or business that relate to any electricity generator assets held by it, including demanding, collecting and receiving charges, levies, rates and fees, and

such other functions for the purposes of an authorised transaction as may be prescribed by the regulations.