Ports Assets (Authorised Transactions) Act 2012

This Act is the Ports Assets (Authorised Transactions) Act 2012.

This Act commences on the date of assent to this Act.

Note—

Schedule 1 contains other interpretative provisions.

In this Act—

associated port land means land (including an interest in land) at Botany Bay, Port of Newcastle or Port Kembla that is vested in any of the following public sector agencies and designated by the Treasurer by order in writing as associated port land for the purposes of this Act—

Transport for NSW,

Property and Development NSW,

any other public sector agency prescribed by the regulations for the purposes of this definition.

authorised transaction means a transfer of ports assets authorised by Part 2.

Port Botany land means land at Botany Bay that is ports assets.

Port Kembla land means land at Port Kembla that is ports assets.

Port of Newcastle land means land at Port of Newcastle that is ports assets.

port SOC means the Port Kembla Port Corporation, the Newcastle Port Corporation or the Sydney Ports Corporation.

ports assets means—

the assets, rights and liabilities of a port SOC, and

associated port land.

retained assets means ports assets that relate only to port operations in Sydney Harbour, the port of Yamba or the port of Eden (and not to port operations in any other port).

Note—

For example, ports assets that relate to port operations in both Sydney Harbour and Botany Bay are not retained assets.

This Act authorises the transfer of ports assets to the private sector or to any public sector agency, subject to the following limitations—

Port Botany land, Port Kembla land, Port of Newcastle land and associated port land can be leased to the private sector but the ownership of the freehold title to that land must remain with a public sector agency,

any lease of Port Botany land, Port Kembla land, Port of Newcastle land or associated port land must not have a term that, together with the term of any further lease that may be granted under an option in respect of it, exceeds 99 years,

this Act does not authorise the transfer of retained assets to the private sector.

No compensation is payable in connection with the transfer under this Act of ports assets to a public sector agency (but this does not prevent such a transfer being for consideration).

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

The transaction proceeds include any payment to a public sector agency that is a periodic lease payment under a lease of ports assets to the private sector pursuant to an authorised transaction.

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 ports 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.

An authorised transaction is to be effected as directed by the Treasurer and can be effected in any manner considered appropriate by the Treasurer.

There are no limitations as to the nature of the transactions or arrangements that can be entered into or used for the purposes of an authorised transaction.

Note—

For example, an ownership structure involving a unit trust could be used for the purposes of an authorised transaction.

The provisions of this Act for the establishment of various kinds of transaction entity do not limit the nature of the legal entities or arrangements that can be used for the purposes of an authorised transaction.

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 the Ports and Maritime Administration 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 a port SOC 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 a transaction company as the holder of shares or other securities in or issued by a transaction company.

Shares and other securities in or issued by 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 or issued by a transaction company.

If a port SOC becomes a transaction company by being converted into a company under this section, a reference in this Act to the port SOC includes a reference to that transaction company.

Each port SOC 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 a port SOC or a 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 a port SOC or a 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 port SOC 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 a port SOC or transaction entity, and to the directors and other officers of a port SOC or transaction entity. Any such directions must be complied with by the port SOC, 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 a port SOC or transaction entity is to conduct its business and other affairs.

Action taken by a port SOC 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 a port SOC 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.

If ports assets are transferred to a subsidiary of a port SOC for the purposes of an authorised transaction, the functions of the port SOC in respect of those ports assets become either retained functions or shared functions, as follows—

retained functions are all functions of the port SOC except those that are shared functions,

shared functions are the functions of the port SOC under Part 5 (Port charges) of the Ports and Maritime Administration Act 1995 but only in respect of charges of a kind that can be fixed under that Part by the port operator of a private port.

In the case of retained functions—

the port SOC continues to have and may exercise retained functions as if the ports assets had remained vested in the port SOC, and

the subsidiary is authorised to exercise retained functions on behalf of the port SOC (with the exception of any function or class of functions that is reserved to the port SOC by a direction of the port SOC to the subsidiary), and

the subsidiary is subject to the direction and control of the port SOC in the exercise of retained functions on behalf of the port SOC, and

any retained functions exercised by the subsidiary under this section are deemed to have been exercised by the port SOC.

In the case of shared functions—

both the port SOC and the subsidiary have and may exercise shared functions, and

the subsidiary has and may exercise shared functions as if the subsidiary were the port SOC, and

Part 6 (Price monitoring scheme) of the Ports and Maritime Administration Act 1995 applies to the subsidiary in respect of port charges charged by the subsidiary in the exercise of shared functions as if it were the port operator, and

the subsidiary exercises shared functions on its own account, and

any charges collected by the subsidiary in the exercise of shared functions are for its own use and benefit.

The regulations may prescribe additional functions of a port SOC as shared functions for the purposes of this section.

This section operates only while the subsidiary in which ports assets are vested is a public sector agency.