Gas Industry Restructuring Act 1986

This Act is the Gas Industry Restructuring Act 1986.

Sections 1 and 2 shall commence on the date of assent to this Act.

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

In this Act:

Corporation means the Energy Corporation of New South Wales constituted under the Energy and Utilities Administration Act 1987.

In this Act:

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Unless a contrary intention appears, expressions used in this Act have the same meanings respectively as they have in the Corporations Act 2001 of the Commonwealth.

For the purposes of this Act (including the application or use for interpretative purposes by or under this Act of a provision of the Corporations Act 2001 of the Commonwealth), The Australian Gas Light Company and all gas distributors that are subsidiaries of The Australian Gas Light Company are taken to be companies within the meaning of the Corporations Act 2001 of the Commonwealth.

The Act passed in 1837 entitled “An Act for lighting with Gas the Town of Sydney in the Colony of New South Wales and to enable certain persons associated under the name style and firm of ‘The Australian Gas Light Company’ to sue and be sued in the name of the Secretary for the time being of the said Company and for other purposes therein mentioned”, as amended by subsequent Acts, may be cited as the “Australian Gas Light Company Act 1837”.

Notes included in this Act do not form part of this Act.

A reference in this Act to The Australian Gas Light Company includes on or after the conversion day referred to in the AGL Corporate Conversion Act 2002:

in relation to matters arising before that day—a reference to The Australian Gas Light Company referred to in the Australian Gas Light Company Act 1837, and

in relation to matters arising on or after that day—to the body corporate of that name constituted by the AGL Corporate Conversion Act 2002, and

in relation to matters arising on or after the registration day referred to in the AGL Corporate Conversion Act 2002—to registered AGL referred to in that Act.

The Australian Gas Light Company, Newcastle Gas Company Limited, City of Goulburn Gas and Coke Company (Limited) and Wollongong Gas Limited have the rights, powers and privileges of a natural person and such additional rights, powers and privileges as are conferred on a company by the Corporations Act 2001 of the Commonwealth.

Nothing in a company’s relevant Act prohibits or restricts the exercise of a power by the company or limits the exercise of a power by the company to the pursuit of the objects of the company under the relevant Act.

Any act, matter or thing done or purporting to have been done by a company before the commencement of this section which would, if done after that commencement, have been validly done is validated.

Notwithstanding the provisions of a company’s relevant Act, the company is authorised to do any act or thing necessary for or reasonably incidental to engaging in the reticulation of gas if authorised to do so under this Act.

In this section:

relevant Act means:

in relation to The Australian Gas Light Company—the Australian Gas Light Company Act 1837,

in relation to Newcastle Gas Company Limited—the City of Newcastle Gas and Coke Company’s Incorporation Act 1866,

in relation to the City of Goulburn Gas and Coke Company (Limited)—The City of Goulburn Gas and Coke Company’s Incorporation Act, and

in relation to Wollongong Gas Limited—the Wollongong Gas-light Company (Limited) Act of 1883.

Subject to this Act, AGL and any relevant gas distributor are declared to be applied Corporations legislation matters for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to non-applicable Commonwealth provisions, subject to the following modifications:

a reference to a company includes a reference to AGL and a relevant gas distributor,

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,

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.

Subsection (1) does not extend to any AGL matter.

Any AGL matter is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation.

Note—

Section 5F of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a matter to be an excluded matter for the purposes of that section in relation to all or part of the Corporations legislation of the Commonwealth, then the provisions that are the subject of the declaration will not apply in relation to that matter in the State concerned.

The regulations may declare any matter relating to AGL or a relevant gas distributor (including any matter dealt with by or under Part 4) to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to:

the whole of the Corporations legislation, or

a specified provision of the Corporations legislation, or

the Corporations legislation other than a specified provision, or

the Corporations legislation other than to a specified extent.

The regulations may provide for the Australian Securities and Investments Commission to exercise a function under any provision of the Corporations legislation that is the subject of the declaration under subsection (1), but only if:

the Australian Securities and Investments Commission 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

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

Section 17 of the Corporations (Ancillary Provisions) Act 2001 has effect in relation to a regulation under subsection (5) as if subsection (1) had expressly made provision for the Australian Securities and Investments Commission to exercise the functions concerned.

In this section:

AGL means The Australian Gas Light Company.

AGL matter means a matter to the extent that it is dealt with by section 8, 10–13, 16, 17 or 19–42 of the Australian Gas Light Company Act 1837.

matter includes act, omission, body, person or thing.

non-applicable Commonwealth provisions means provisions of the Corporations legislation that do not apply to a matter as a law of the Commonwealth.

relevant gas distributor means a gas distributor that is a wholly owned subsidiary of AGL.

This section applies:

to The Australian Gas Light Company and the Newcastle Gas Company Limited, and

notwithstanding the provisions of any memorandum or articles of association.

The liability of a member or past member of a company to which this section applies to contribute to the property of the company on a winding up of the company does not exceed the amount (if any) unpaid on the shares in respect of which the member is liable as a present or past member.

For the purposes of this Part, a person holds shares in The Australian Gas Light Company if the person would, for the purposes of the Companies (Acquisition of Shares) (New South Wales) Code, be regarded as being entitled to the shares.

The expressions shareholder and shareholding have a corresponding meaning.

It is declared that the provisions of this Part that refer to, or apply to a matter, provisions of the Companies (New South Wales) Code or the Companies (Acquisition of Shares) (New South Wales) Code have effect (and are taken at all times on or after their commencement to have had effect) according to their tenor and despite any provision of the Corporations (New South Wales) Act 1990 or the applicable provisions (as defined in that Act) of the State.

Expressions used in this Part have, unless the contrary intention appears, the same meanings respectively as they have in the Companies (New South Wales) Code.

For the purposes of this Act (including the application or use for interpretative purposes by or under this Part of a provision of the Companies (New South Wales) Code or the Companies (Acquisition of Shares) (New South Wales) Code), the Australian Gas Light Company and all gas distributors that are subsidiaries of The Australian Gas Light Company are taken to be companies within the meanings of those Codes.

In this Part, The Australian Gas Light Company is referred to as the Company.

In this Part, a reference to a realised capital gain in relation to a share is a reference to any capital gain realised by the shareholder on the disposition of the share less any tax paid or payable by the shareholder in respect of that gain under a law of this State or the Commonwealth.

A person may hold shares in the Company which represent up to, but shall not knowingly hold shares which represent more than, 5 per cent of its issued share capital.

Penalty: 5,000 penalty units.

The Minister may approve in writing of a person holding a specified greater proportion of the issued share capital of the Company and a person who holds shares in accordance with the approval does not contravene this section.

This section applies to the exclusion of any provision of the AGL Corporate Conversion Act 2002 (or any law applied to the Company by that Act) concerning the maximum shareholding in the Company.

This section applies to a shareholding whether it commenced before, on or after the commencement of this section.

The Minister shall not approve of a shareholding unless the Company consents.

With the consent of the Company, the Minister may:

give the approval subject to conditions, and

at any time vary, add to or revoke the conditions to which the approval is subject by notice in writing to the shareholder and the Company.

The approval may be revoked by the Minister at any time by notice in writing to the shareholder and the Company.

Where the Company suspects that a person is contravening section 41, the Company shall immediately notify the Minister giving details of the suspected contravention.

Penalty: 100 penalty units.

Before a transfer of shares in the Company is registered, a director or the secretary of the Company may require the transferee to make a statutory declaration under this section.

The declaration shall be to the effect that registration of the transfer will not result in a contravention of section 41 by the transferee or by a person who is or who would thereby become associated with the transferee (within the meaning of the Companies (New South Wales) Code).

If the transferee fails to comply with the requirement, the Company may refuse to register the transfer.

If the Minister grants an approval for a shareholding in the Company of greater than 5 per cent of its issued share capital, the Minister may by notice in writing to the shareholder and the Company give any one or more of the following directions:

a direction which prohibits, limits or otherwise restricts the exercise of any voting rights attached to the shares,

a direction vesting voting rights attached to some or all of the shares in any person, including the Minister,

a direction which provides that a specified person who is associated (within the meaning of the Companies (New South Wales) Code) with the shareholder in relation to the exercise of any voting rights attached to the shares is not qualified to be a director of the Company or of any of its gas distributor subsidiaries,

a direction which provides that not more than a specified number of persons who are so associated are qualified to be directors of the Company or of any of its gas distributor subsidiaries.

A direction concerning voting rights attached to shares may relate to any shares in the shareholding except shares representing 5 per cent of the issued share capital of the Company.

A direction:

may be given when the approval is given or subsequently, and

may be varied or revoked by the Minister at any time by notice in writing to the shareholder concerned and the Company.

A direction shall not be given, varied or revoked without the consent of the Company.

A direction has effect according to its tenor but only while the approval to which it relates is in force.