Eraring Power Station Act 1981

This Act may be cited as the Eraring Power Station Act 1981.

This section and section 1 shall commence on the date of assent to this Act.

Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

affiliate means any company in which the Commission has a controlling interest by virtue of its shareholding in the capital of the company.

associated facilities means works and facilities connected solely with the delivery of raw materials to, the generation or supply of electricity from, the sale or disposal of electricity generated from, or the disposal of waste from, the Eraring Power Station, but does not include the Eraring Power Station itself.

Commission means The Electricity Commission of New South Wales constituted under the Electricity Commission Act 1950.

Court means the Supreme Court.

Eraring Power Station means the power station erected or constructed or to be erected or constructed on the site.

special arrangement means an agreement, arrangement or understanding to which the Commission is a party and which was entered into pursuant to section 4.

the site means such land as is, pursuant to orders under subsection (4), for the time being declared to be or form part of the site.

A reference in this Act to—

law includes a reference to equity,

proceedings includes a reference to legal proceedings or proceedings by way of arbitration,

purchase includes a reference to repurchase, and

transfer of land includes a reference to the conveyance or assurance of land.

Without limiting the operation that this Act would have if this subsection had not been enacted—

a reference in this Act to the Eraring Power Station includes a reference to any unit or other part of the Eraring Power Station, and this Act applies to and in respect of any such unit or part as if references in this Act to the Eraring Power Station were references to the unit or part, and

a reference in this Act to the site includes a reference to any part of the site, and this Act applies to and in respect of any such part as if references in this Act to the site were references to the part.

The Governor may, by order published in the Gazette, declare land described in the order to be or form part of the site.

The Commission, with the approval of the Governor given on the recommendation of the Minister and with the concurrence of the Treasurer, may enter into agreements, arrangements or understandings for the purpose of or in connection with the financing, erection, construction, development, disposition, sale, purchase, ownership, operation, maintenance or management of the Eraring Power Station, the site (including easements or rights of way appurtenant to the site) or any associated facilities.

For the purposes of this Act, the Commission may—

join in the formation of any company to be incorporated in New South Wales, and

purchase, hold, dispose of or deal with shares in, or subscribe to the issue of shares by, any company incorporated in New South Wales.

The Commission may do, omit to do or suffer to be done any act, matter or thing arising from or incidental or ancillary to the purchase, holding, disposition or dealing by it of or with shares in, or the subscription by it to issues of shares by, any such company.

Any payment by the Commission required for or in connection with the formation of a company, the purchase of shares, or the subscription to issues of shares, as referred to in this section, shall be made out of such fund of the Commission as the Commission may determine.

An affiliate formed for a commercial purpose is not and does not represent the Crown.

The Commission may authorise or empower an affiliate to enter, as principal, into an agreement, arrangement or understanding for any of the purposes or any of the matters referred to in section 4, whether or not the Commission is also a party to the agreement, arrangement or understanding, and, where an affiliate is so authorised or empowered, it may enter into the agreement, arrangement or understanding.

Nothing in this Act shall be construed as preventing the inclusion in an agreement, arrangement or understanding, to which an affiliate is, but the Commission is not, a party, of provisions which could have been included had section 6 not been enacted.

Nothing in this Act shall be construed as preventing an affiliate from being or acting as agent of the Commission.

A special arrangement may make provision for or with respect to—

the incurring and performing by the Commission or an affiliate of any obligation or liability, absolute, qualified or contingent, present or future, or

the subordination by the Commission or an affiliate of any of its rights arising under or in respect of any charge, loan or unpaid purchase money or otherwise,

in connection with the financing, erection, construction, development, disposition, sale, purchase, ownership, operation, maintenance or management of the Eraring Power Station, the site (including easements or rights of way appurtenant to the site or any part of the site) or any associated facilities.

A special arrangement may contain absolute and unconditional covenants and promises, and in particular may contain—

absolute and unconditional covenants or promises by the Commission or an affiliate to pay for, or to make payments calculated by reference to, the output, or the prospect of obtaining the output, of the Eraring Power Station, whether or not that output is, at any relevant time, produced or delivered or capable of being produced or delivered, and whether or not the Eraring Power Station is, at any relevant time, erected, in existence, available to be operated or capable of being operated,

absolute and unconditional covenants or promises by the Commission or an affiliate to purchase, and pay for, any one or more of the following, namely, the Eraring Power Station, the site, easements or rights of way appurtenant to the site and any associated facilities in the events or circumstances specified in the special arrangement, and

absolute and unconditional covenants or promises by the Commission or an affiliate to make loans (at interest or otherwise) in the events or circumstances specified in the special arrangement,

or any of them.

A covenant or promise referred to in subsection (2) (a) may contain an obligation to make payment in advance.

Where the Commission, in any special arrangement, makes a covenant or promise to make any payment irrespective of any event or circumstance which otherwise would or might at law terminate, or permit termination of, the arrangement or excuse compliance with, or performance of, or provide a defence to, any proceedings to enforce the covenant or promise, the covenant or promise shall operate and be enforceable in accordance with its terms notwithstanding any provision of the Frustrated Contracts Act 1978, any other Act or statute or any rule of law to the contrary.

A special arrangement may contain a provision that the arrangement shall not be terminated on account of any matter or thing referred to in the special arrangement and shall be enforceable notwithstanding any such matter or thing, being or including (without limiting the generality of the foregoing) any default, event of force majeure or other event which would or might at law otherwise terminate, or permit termination of, the arrangement or excuse compliance with, or performance of, or provide a defence to, any proceedings to enforce the arrangement, and where any special arrangement so provides the provision—

shall operate in accordance with its terms so that the special arrangement shall not be capable of being terminated except by express agreement between the parties or in the events or circumstances expressly provided for in the special arrangement, and

shall be enforceable in accordance with its terms,

notwithstanding any provision of the Frustrated Contracts Act 1978, any other Act or statute or any rule of law to the contrary.

A special arrangement may include an express waiver by the Commission of its immunity (if any) under any Act or rule of law from proceedings, either in whole or in part, and any such waiver shall operate in accordance with its terms notwithstanding the provisions of any Act or rule of law to the contrary.

A special arrangement may include a guarantee by the Commission of all or any of the covenants, promises, obligations or liabilities undertaken by or imposed upon an affiliate under any special arrangement.

A special arrangement may provide—

that ownership of specified buildings, structures or other fixtures, or all buildings, structures or other fixtures or those of a specified class or description, on the site shall not vest in the owner of the land on which they are situated or in any other person having or claiming an interest in the land, and

that those buildings, structures or other fixtures are not realty and shall be transferable, in accordance with the provisions of that or any other special arrangement, to another person,

and any such provision shall operate in accordance with its terms notwithstanding any rule of law to the contrary.

Upon lodgment with the Registrar-General by the Commission of a plan of subdivision of the site, or of a transfer of the site, excepting thereout any specified buildings, structures or other fixtures, or all buildings, structures or fixtures or those of a specified class or description, situated on the site, the Registrar-General shall, without requiring any survey or other plan of the land indicating where the buildings, structures or other fixtures are situated and upon being satisfied that the land comprises the site and that the plan of subdivision or transfer is otherwise in registrable form, register the plan of subdivision or transfer.

A special arrangement may provide that ownership of or property in specified assets, or assets of a specified class or description, on, in or over land the subject of an easement appurtenant to the site shall vest in a specified person, and any such provision shall operate in accordance with its terms notwithstanding any rule of law to the contrary.

A vesting of assets or property under subsection (8) or (10) does not, except to such extent and subject to such conditions (which may include a condition that compensation is to be payable by the Commission as if the assets had been appropriated or resumed, under Division 1 of Part 5 of the Public Works Act 1912, for the purpose of carrying out an authorised work within the meaning of that Act) as the Governor may, by proclamation published in the Gazette, declare, divest any proprietary rights of a person or class of persons not a party to the special arrangement.

Nothing in any provision of this section limits any other provision of this section, and nothing in this section prevents the inclusion in a special arrangement of provisions that are not of a kind referred to in this section.

The Commission may, with the approval of the Minister, make arrangements for the secondment of any of its servants for the purpose of carrying into effect and implementing the terms of any special arrangement, and any such arrangements shall have effect in accordance with their terms, notwithstanding section 64 (3) of the Electricity Commission Act 1950.

Where the Minister certifies to the Governor that he is satisfied that a partnership, joint venture or other association has been formed principally for purposes connected with the purposes of this Act, the Governor may, by proclamation published in the Gazette, declare that this subsection applies to the partnership, joint venture or association, and thenceforth the following provisions have effect—

the partnership, joint venture or association shall not, throughout the period from the date of its formation until the date that is 6 months after the date of its formation or, where some other date is prescribed, the prescribed date, be dissolved by reason of any person becoming a member of the partnership, joint venture or association, and

the partnership, joint venture or association shall, as from the expiration of that period, be deemed to have consisted, throughout that period, of those persons who, at the expiration of that period, are members of the partnership, joint venture or association, in accordance with the interest of each of those members at the expiration of that period, but not so as to affect the liability of any person who ceased to be a member of the partnership during that period.

Where the Minister certifies to the Governor that a partnership, joint venture or association consisting of more than 20 persons has been formed principally for purposes connected with the purposes of this Act, the Governor may, by proclamation published in the Gazette, declare that this subsection applies to the partnership, joint venture or association, and thenceforth the following provisions have effect—

without limiting the provisions of any other Act applicable to the partnership, joint venture or association, the partnership, joint venture or association shall be deemed to be and always to have been formed in pursuance of this Act, and

the partnership, joint venture or association is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to section 115 of that Act.

The Commission, an affiliate and each other party to a special arrangement may do all things authorised or required by the special arrangement to be done by them respectively and all things incidental thereto and may also do such things as are necessary or convenient to be done for the purposes of carrying into effect and implementing the terms of any special arrangement.

The Commission, with the approval of the Governor given on the recommendation of the Minister and with the concurrence of the Treasurer, may charge its income and revenue from whatever source arising to secure any obligations or liabilities, absolute, qualified or contingent, present or future, of the Commission created by or arising out of a special arrangement.

Any charge referred to in subsection (1) does not operate to prevent the Commission from dealing with its income and revenue in the ordinary course of the exercise or performance of its powers, authorities, duties or functions under this or any other Act or in such manner as may be expressly permitted under the charge.

Notwithstanding the provisions of any other Act, obligations or liabilities of the Commission which are secured upon the income and revenue of the Commission by reason of a charge created pursuant to section 10 (1) shall rank pari passu with—

all other obligations and liabilities of the Commission which are so secured, and

all obligations and liabilities of the Commission to repay financial accommodation the repayment of which is, or to make other payments which are, secured upon the income and revenue of the Commission (whether pursuant to the Public Authorities (Financial Accommodation) Act 1981, or otherwise and whether obtained before, on or after the day appointed and notified under section 2 (2)),

without any preference one above another by reason of priority of date or otherwise, except to the extent that the charge by which the obligations or liabilities are secured under this Act expressly provides that those obligations or liabilities shall rank subsequent to any such other obligations or liabilities, in which event they shall rank as so provided.

A reference in this section to obligations or liabilities of the Commission includes a reference to the charge securing those obligations or liabilities.

A special arrangement, any obligations or liabilities created by or arising out of a special arrangement, or any charge in respect of those obligations or liabilities, shall, if the Governor so directs, be—

in such form,

in such amounts and such currencies,

expressed in such manner and on such terms and conditions,

expressed to be assignable, not assignable or assignable on such terms and conditions, and

upon such security,

as the Governor may approve.

A direction or approval under this section shall be given on the recommendation of the Minister and with the concurrence of the Treasurer.